P L D 2021 Supreme Court 1 (PLP)

UMAR ATA BANDIAL, J.

786 "Surah An Nisa, Verse 135: O YOU who have attained to faith! Be ever steadfast in upholding equity, bearing witness to the truth for the sake of God, even though it be against your own selves or your parents and kinsfolk. Whether the person concerned be rich or poor, God's claim takes precedence over [the claims of] either of them. Do not, then, follow your own desires, lest you swerve from justice: for if you distort [the truth], behold, God is indeed aware of all that you do." Translation by Muhammad Asad (emphasis supplied) Justice is an article of faith in our religion, whether that may be against our kith and kin or against the rich or poor. However, justice is an abstract concept attainable only where the scales of justice are held by persons (the Judges) who balance these equitably without regard to their personal desires. Indeed, the latter is the duty of the Superior Judiciary by virtue of their Oath to dispense justice without any fear or favour, affection or ill-will (ref: Third Schedule to the Constitution, Oath for Judges of the Superior Courts). This serves as proof that Judges of the Superior Courts are bound to be impartial and are entitled to be independent in the dispensation of justice.

2. In fact, an impartial and independent judiciary is universally recognised as a core value of any civilised democracy. This is evidenced by the international conventions that protect this value as a fundamental right of the people (ref: United Nations Basic Principles on the Independence of Judiciary and The (Montreal) Universal Declaration on the Independence of Justice). The significance of an independent judiciary is also deeply embedded in Pakistan with the Constitution itself guaranteeing in its Preamble that: "...the independence of the judiciary shall be fully secured;" Even this Court in its pronouncements on the meaningful working of the Constitutional scheme of trichotomy of powers has many a times reaffirmed that the judiciary must enjoy the confidence of the litigants and the general public in its impartiality and commitment to dispense justice in accordance with law. A prerequisite for these attributes is the guarantee of the independence of the judiciary, a fact which this Court acknowledged in the case of Muhammad Aslam Awan v. Federation of Pakistan (2014 SCMR 1289). The relevant portion which can be found at para-2 is produced below: "2: Judicial independence both of the individual Judge and of the Judiciary as an institution is essential so that those who bring their causes/cases before the Judges and the public in general have confidence that their cases would be decided justly and in accordance with law. Judicial independence is one of the foundational values of the Constitution of Islamic Republic of Pakistan which is based on trichotomy of powers in which the functions of each organ of the State have been constitutionally delineated. The very Preamble of the Constitution pledges "wherein the independence of judiciary shall be fully secured". The Constitution makers conferred this independence because they wanted the Judges to "do right to all manner of people, according to law, without fear or favour, affection or ill-will" (Oath of office of Judges). The fundamental rights guaranteed under the Constitution cannot be secured unless Judiciary is independent because the enforcement of these rights has been left to Judiciary in terms of Articles 184(3) and 199 of the Constitution and the relevant law. Judiciary has not been made part of the Executive or the Legislature (Article 7). The separation of Judiciary from the Executive was made a Constitutional mandate (Article 175(3))." (emphasis supplied) It is in this context that Justice Qazi Faez Isa ("the petitioner") submits that he has filed the present Constitution Petition No. 17 of 2019 ("petition") seeking to protect this basic fundamental right of the Pakistani people from unlawful interference by the Executive authorities. To our minds, the primary duty of the Bench in all matters, including the present petition, is to do justice impartially in accordance with law without compromising our independence. FACTS

3. In the above background, we may now set out the events which led to the filing of this petition. The petitioner is a serving Judge of the Supreme Court. Prior to this he was appointed directly as Chief Justice of Balochistan High Court on 05.08.2009, following which he was elevated to the Supreme Court on 05.09.2014. The petitioner has thus been holding public office since the later part of 2009. On 10.04.2019, Respondent No. 4, Mirza Shahzad Akbar, Chairman Assets Recovery Unit ("ARU"), received a letter from a journalist, one Mr. Abdul Waheed Dogar ("Mr. Dogar") . The letter alleged that the petitioner had certain properties in the United Kingdom owned in the name of his wife, ("Mrs. Isa"), which he had not declared. Attached with this letter was a document detailing one of the properties, 40 Oakdale Road, London, E11 4DL. However, the respondents only produced this document once they commenced their arguments on 02.06.2020. Thereafter, the Chairman ARU met with the Law Minister on 16.04.2019 who authorised the ARU to investigate into the matter on the basis of the above mentioned information. This is recalled in the former's letter dated 10.05.2019 addressed to the Law Minister.

4. After the grant of the aforenoted authorisation on 16.04.2019, certain inquiries were made by ARU to confirm the veracity of the allegations levelled against the petitioner by Mr. Dogar: firstly, the legal expert of ARU, Barrister Zia Ul Mustafa Nasim, was asked to find out whether the petitioner owned any properties in the United Kingdom in the name of Mrs. Isa and secondly, the Chairman of Federal Board of Revenue ("FBR") was approached for examining the tax records of the petitioner and Mrs. Isa to determine whether any foreign properties had been declared in their wealth statements.

5. On 08.05.2019, the legal expert of ARU conveyed to the Chairman ARU that there were three properties in the United Kingdom belonging to Mrs. Isa and her children. Their details are as follows: i. 50 Coniston Court which was originally leased to the petitioner's wife in 2004 for a sum of 236,000 and was later renewed in October 2011 with the daughter added as a co-lessee; ii. 40 Oakdale Road which was purchased by the wife and daughter on 27.03.2013 for a sum of 245,000; and iii. 90 Adelaide Road which was purchased by the wife and son on 28.06.2013 for a sum of 270,000 ("London Properties"). Subsequently, on 10.05.2019 the Assistant Commissioner (Inland Revenue) confirmed to the Commissioner (Inland Revenue) that neither the petitioner nor Mrs. Isa had declared these properties in their wealth statements. Additionally, he revealed that Mrs. Isa had stopped filing her tax returns from the tax year 2015 and onwards.

6. On receipt of this information, the Chairman of ARU wrote a memorandum to the Law Minister on 10.05.2019 apprising him about the recent findings. On the basis of this material, claimed to demonstrate the petitioner's ownership of undeclared foreign assets, the Ministry of Law and Justice on 17.05.2019 prepared a summary for the Prime Minister ("PM"). This summary recommended the PM to advise the President to file a Reference under Article 209(5) of the Constitution before the Supreme Judicial Council ("SJC") alleging misconduct against the petitioner. On 20.05.2019 the President approved and signed the Reference (this was later numbered as SJC Reference No. 1 of 2019) which was filed with Secretary SJC on 23.05.2019. The primary allegation in the Reference against the petitioner was that he had violated Section 116 of the Income Tax Ordinance, 2001 ("the Ordinance") by not declaring the London Properties of Mrs. Isa and his children in his wealth statements. The Reference also alleged that the source of funds for purchasing these properties was not accounted for which meant that the aspect of money laundering could not be ruled out.

7. Consequent to the Reference being filed, the SJC by a formal intimation dated 14.06.2019 directed the petitioner to respond to the three allegations contained in the Reference (ref: Const. P. No. 17 of 2019, Part II), particularly: "Page 106: ...the factum of ownership of the relevant properties mentioned in the Reference, the source of funds utilized for their acquisition and the mode of transfer of such funds." (emphasis supplied) The petitioner filed his Preliminary Response on 28.06.2019 in which he admitted that the London Properties were owned by his wife, who he claimed was a financially independent taxpayer, and his adult children (ref: page 128, Const. P. No. 17 of 2019, Part II). However, no explanation was provided for the other two questions posed by the SJC. As a result, the SJC by its order dated 02.07.2019 asked the former learned Attorney General ("AG") to assist the Council on the next date of hearing on 12.07.2019. Consequently, the AG filed a Rejoinder before the SJC on 11.07.2019. After considering the Preliminary Response of the petitioner and the Rejoinder and documents filed by the AG, on 12.07.2019 the SJC ordered the issuance of a Show Cause Notice ("SCN") to the petitioner. The SCN was issued on 17.07.2019. In his Interim Reply to the SCN dated 31.07.2019, the petitioner categorically rejected being the owner, both actual and ostensible, of the London Properties and further denied all knowledge of their particulars. Thereafter, he filed the present petition bearing the number Const. P. 17 of 2019 under Article 184(3) of the Constitution on 07.08.2019 with the following prayer: A. Declare that Reference No. 1 and Reference No. 427 are not maintainable and non-est dismiss the same; B. Declare that Reference No. 1 and Reference No. 427 are mala fide, filed with malice aforethought, filed for ulterior motives and to achieve a collateral purpose and therefore are not maintainable and liable to be dismissed; C. Declare that proceeding any further with Reference No. 1 and Reference No. 427 undermines the independence of the judiciary, which independence is secured under the Constitution; D. Declare that as Reference No. 1 has been filed by proxy it is not maintainable and cannot be entertained; E. Declare that as there is every likelihood for this petition succeeding the Hon'ble Supreme Judicial Council be restrained from proceeding in the matter of Reference No. 1 and Reference No. 427 till the disposal of this Petition; F. Declare that in camera proceedings of the Hon'ble Council in the context of this case are without lawful authority and in breach of fundamental rights; G. Grant any other, further or better relief to which the Petitioner may be entitled to and which this Hon'ble Court deems fit and proper to grant under Article 184 (3) of the Constitution.

8. The above noted prayer in the petition is preceded by fifty-four questions of law. The main contentions formulated by the learned counsel for the petitioner are as follows: i. There was no legal obligation on the petitioner to disclose the London Properties of his wife and children; ii. The alleged misconduct has no nexus with the office of the petitioner; iii. The Reference is a mala fide and colourable exercise of power; iv. The petitioner and his family were subjected to covert State surveillance; v. The evidence against the petitioner was collected illegally; vi. The ARU was constituted without any legal authority; vii. There was no authorisation from the President to collect material in support of the complaint; viii. The President did not form his opinion in terms of Article 209(5) of the Constitution; ix. No approval of the Federal Cabinet was taken prior to the filing of the Reference before the SJC; x. There is no substance to the allegations levelled against the petitioner in the Reference; and xi. The members of the SJC harbour bias against the petitioner (however, learned counsel for the petitioner did not press this argument during oral submissions). On the factual plane, learned counsel for the petitioner repeatedly contended that because the London Properties are held in the names of the petitioner's financially independent taxpayer wife and adult children, the tax authorities should question them about the source of funds and the mode of their transfer, instead of harassing the petitioner through a Presidential reference filed under Article 209 of the Constitution.

9. Subsequent to the filing of Const. P. No. 17 of 2019 before this Court, the following Constitution Petitions were also filed by the Bar Councils and Associations and concerned citizens of Pakistan to defend the integrity of the petitioner: i. Supreme Court Bar Association v. President of Pakistan and others (Const. P. No. 19 of 2019); ii. Abid Hassan Minto and another v. Supreme Judicial Council through its Secretary and others (Const. P. No. 20 of 2019); iii. Pakistan Bar Council v. President of Pakistan (Const. P. No. 21 of 2019); iv. Abdul Basit President High Court Bar Association Quetta v. President of Pakistan (Const. P. No. 22 of 2019); v. Muhammad Asif Reki President Quetta Bar Association v. President of Pakistan (Const. P. No. 23 of 2019); vi. Sindh High Court Bar Association v. President of Pakistan (Const. P. No. 24 of 2019); vii. Balochistan Bar Council v. President of Pakistan (Const. P. No. 25 of 2019); viii. Sindh Bar Council v. Supreme Judicial Council through its Secretary (Const. P. No. 26 of 2019); ix. Hafiz Abdur Rehman Ansari v. President of Pakistan (Const. P. No. 27 of 2019); x. Karachi Bar Association v. President of Pakistan (Const. P. No. 28 of 2019); xi. KPK Bar Council v. President of Pakistan (Const. P. No. 29 of 2019); xii. Peshawar High Court Bar Association v. President of Pakistan (Const. P. No. 30 of 2019); xiii. Punjab Bar Council v. President of Pakistan (Const. P. No. 32 of 2019); and xiv. Pakistan Federal Union of Journalists v. President of Pakistan (Const. P. No. 34 of 2019). These connected petitions primarily raised similar contentions as those agitated by the petitioner, namely, the non-application of mind by the President, mala fides on the part of the respondents in the framing and preparation of the Reference, the precise nature and scope of Article 209(5) of the Constitution, the unlawful creation of the ARU and the necessity of protecting the independence of the judiciary. In the interests of justice, these petitions were clubbed together and were heard along with the main petition filed by the petitioner.

10. In rebuttal to the petitioner's pleas and without assailing his integrity, the respondents submitted the following objections and contentions: i. The petition is not maintainable for failing to cross the bar under Article 211 of the Constitution both in respect of the pre-reference proceedings and the unchallenged SCN issued by the SJC; ii. The term misconduct is an inclusive term which includes not only conduct which violates the law but also conduct which is unbecoming of an officer; iii. The conduct of the petitioner has to be viewed in light of the obligations laid out in the Code of Conduct; iv. There is no ulterior purpose behind the filing of the Reference; v. There has been no covert surveillance of the petitioner or his family or any breach of their right to privacy; vi. There has been no illegal collection of evidence; vii. The ARU has been properly constituted; viii. The President has formed his opinion in accordance with law; and ix. There is merit in the allegations levelled against the petitioner in the Reference.

11. At the outset, we would like to mention that the first hearing for this petition commenced on 17.09.2019 in front of a seven member Bench. However, learned counsel for the petitioner filed an objection application against two learned Judges of the Bench, namely, Justice Sardar Tariq Masood and Justice Ijaz ul Ahsan. He submitted that an adverse outcome for the petitioner, i.e. removal from office, would benefit both the learned Judges in the following manner: Justice Sardar Tariq Masood would become Chief Justice for six months in the year 2023 while Justice Ijaz ul Ahsan would thereafter see his tenure as Chief Justice increase from ten months to seventeen months. Accordingly, he requested the two learned Judges to recuse themselves from hearing this petition. The remaining five members of the Bench unanimously disapproved of this application of the learned counsel in their order dated 17.09.2019 reported as Justice Qazi Faez Isa v. The President of Pakistan (2019 SCMR 1875): "5: ... The submissions made by the learned counsel, however, do not disclose such an interest. On the other hand, the suggestion is that a tangible interest may accrue four years later. It involves a contingent, prospective and speculative interest. No precedent to hold such a future contingency to be a disqualifying factor for a Judge has been cited by the learned counsel. His plea is accordingly laden with contingencies and possibly fails the test of a "real likelihood" of prejudice from any Member of this Bench [Asif Ali Zardari v. State (PLD 2001 SC 568 at p.592)]. As such the submissions made by learned counsel prima facie do not carry weight." (emphasis supplied) However, Justice Sardar Tariq Masood, immediately, and Justice Ijaz ul Ahsan, with strong reservations, recused themselves from the Bench to maintain the purity, dignity and sanctity of this Court. For convenience, a portion from the note penned by Justice Ijaz ul Ahsan is reproduced below: "2: However, in view of the reservations, unfortunately expressed on behalf of the petitioner, who is a brother Judge of this Court, which are neither justified nor have any basis whatsoever in fact, I do not consider it appropriate to hear these petitions, lest the petitioner entertain the remotest possibility of even a notional element of partiality or bias on my part." (emphasis supplied) It was in these circumstances that the file of this case was placed before the (then) Chief Justice to constitute a Full Court of eligible Judges who were neither members of the SJC nor were objected to by the petitioner.

12. As a result, a Bench comprising of ten learned Judges was formed which heard this petition for approximately 10 months, during which period learned counsel for the petitioner argued their case across 18 hearings, learned counsel in the connected petitions argued their cases across 10 hearings and learned counsel for the respondents argued his case across 13 hearings. Subsequently, this Court passed a short order on 19.06.2020 which is reproduced below for convenience: "ORDER For detailed reasons to be recorded later and subject to any orders made or directions given therein (if any), these petitions are allowed and disposed of in the following terms:

1. Subject to what is stated below, the Order of the Court is that Reference No. 1 of 2019 is declared to be of no legal effect whatsoever and stands quashed, and in consequence thereof the proceedings pending in the Supreme Judicial Council ("Council") against the Petitioner in C.P. 17/2019 (including the show-cause notice dated 17.07.2019 issued to him) stand abated.

2. Mr. Justice Yahya Afridi dismisses C.P. 17/2019 and disposes of the other petitions in terms as stated in para 1 herein above.

3. Mr. Justice Umar Ata Bandial, Mr. Justice Manzoor Ahmad Malik, Mr. Justice Faisal Arab, Mr. Justice Mazhar Alam Khan Miankhel, Mr. Justice Sajjad Ali Shah, Mr. Justice Munib Akhtar and Mr. Justice Qazi Muhammad Amin Ahmed make the following orders as the further Order of the Court (paras 4 to 11 herein below):

4. Within 7 days of this Order, the concerned Commissioner of Inland Revenue shall himself (and not some other officer exercising delegated powers) issue appropriate notices under the Income Tax Ordinance, 2001 ("2001 Ordinance") to the spouse and children of the Petitioner to offer an explanation regarding the nature and source of the funds (separately for each property) whereby the three properties in the United Kingdom (viz., No. 40, Oakdale Road, London E11 4DL; No. 90, Adelaide Road, London E10 5NW; and No. 50, Coniston Court, Kendal Street, London W2 2AN) that are in the names of the spouse and the children were acquired. For purposes of this Order the Commissioner Inland Revenue having jurisdiction over the spouse of the Petitioner (who must be a Commissioner exercising jurisdiction and performing functions at Islamabad) shall be deemed also to be the Commissioner having jurisdiction over the children. (The spouse and children are herein after referred to as "the respondents".) Any notices issued or proceedings taken (or proposed to be issued or taken) under the 2001 Ordinance in relation to any of the respondents in respect, or on account, of the properties aforesaid prior to the date of this Order stand terminated forthwith.

5. The notices shall be served at the official residence of the Petitioner at Islamabad through courier service and such other means as may be considered appropriate and shall be deemed served on the respondents when received at the said address.

6. The respondents shall furnish their replies to the notices along with such material and record as is deemed appropriate. In case any of them is outside the country, it shall be the responsibility of such person to timely file a response, and the proceedings before the Commissioner shall not be adjourned or delayed for the reason of non-availability in Pakistan of such person.

7. Upon receipt of the replies (and of such additional material/ record as may be filed in response to such clarification or explanation, if any, as the Commissioner may, in writing, have sought), the Commissioner shall give an opportunity of hearing to the respondents in person or through an authorized representative/ counsel and shall thereupon make an order in accordance with the 2001 Ordinance.

8. The proceedings shall be concluded before the Commissioner within 60 days of the date of receipt of the notices as aforesaid, and the order shall be issued by him within 75 days of the said date of receipt, and no adjournment or extension in time whatsoever shall be given as affects or extends the aforesaid periods.

9. Within 7 days of the issuance of the order by the Commissioner, the Chairman, Federal Board of Revenue ("FBR") shall submit a report (to be personally signed by him) to the Council through its Secretary (i.e., the Registrar of the Supreme Court) regarding the proceedings as aforesaid, appending thereto the entire record of the said proceedings. The Secretary shall forthwith place such report before the Chairman of the Council (i.e., the Hon'ble Chief Justice of Pakistan) who shall, in such manner as is deemed appropriate, have the report laid before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner as the Council may determine. The receipt of the report, the laying of it before the Council and the action/ proceedings, if any, or orders or directions, if any, as may be taken, made or given by the Council thereon shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo motu jurisdiction as is conferred by that Article on the Council.

10. If, within 100 days from the date of this Order, no report as aforesaid is received by the Secretary from the Chairman, FBR, he shall inform the Chairman of the Council accordingly and shall, if so directed by him, write to the Chairman, FBR requiring an explanation as to why the report has not been received. If in reply the report is filed, then the matter shall proceed in terms of para 9 herein above. If a reply is received without the report or no reply is received, then the Secretary shall bring such fact to the attention of the Chairman of the Council who may direct that the matter be placed before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner (or any other person as deemed appropriate) as the Council may determine. The action/ proceedings, if any, or orders or directions, if any, as may be taken, made or given by the Council shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo motu jurisdiction as is conferred by that Article on the Council. Without prejudice to the foregoing, if at any stage the report is received from the Chairman, FBR, then the matter shall in any case proceed (or be deemed to proceed, as the case may be) in terms of para 9 herein above.

11. For the removal of any doubts, it is clarified that any of the proceedings under the 2001 Ordinance as herein contemplated on the one hand, and before the Council in terms of paras 9 or 10 herein above on the other, are distinct and separate from each other. Accordingly, nothing contained in this Order shall affect or prejudice the right(s) of appeal of any of the respondents under the 2001 Ordinance, if they feel aggrieved by the order made by the Commissioner or (as the case may be) any order made or decision taken at any appellate stage. Any such appeal(s) shall be decided on the merits, in accordance with the 2001 Ordinance. At the same time (and needless to say), the consideration by the Council of any matter placed before it under either paras 9 or 10 herein above shall not be affected by the filing or pendency of any appeal as aforesaid. But the Council may, if it deems appropriate, notice such appellate proceedings or orders/ decisions and may (for purposes only of the matter before it) make such orders or give such directions in relation thereto as it deems appropriate.

12. Mr. Justice Maqbool Baqar, Mr. Justice Mansoor Ali Shah and Mr. Justice Yahya Afridi join in the Order of the Court only to the extent of para 1 herein above, and also make their own order. Order per Maqbool Baqar, Syed Mansoor Ali Shah and Yahya Afridi, JJ.

13. For the reasons to be recorded later and without limiting our jurisdiction in any manner to appropriately enlarge the scope of or make appropriate declarations and directions in the detailed judgment, subject to para 15 hereunder, we hold the above petitions maintainable and allow the same. One of the outcomes of such declaration is that the Reference filed by the President of Pakistan against the Petitioner (Mr. Justice Qazi Faez Isa) is quashed, and as a result the proceedings along with the Show Cause Notice issued by Supreme Judicial Council stand abated.

14. One of our pivotal Constitutional values is that the independence of judiciary shall be fully secured. The same Constitution also ordains that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Therefore, it is reiterated that in our constitutional democracy, neither the petitioner judge, nor any other judge, or any individual or any institution, is above the law. The doors of the constitutional forum i.e., Supreme Judicial Council are always open, either on its own motion or for anyone who has a genuine and a bonafide grievance, amenable to the jurisdiction of the Council against a Judge of the Constitutional Court. At the same time, it is equally important, that a Judge like any other citizen of Pakistan enjoys the inalienable constitutional right to be treated in accordance with law. These fundamental values are to be protected at all cost in order to uphold the majesty and supremacy of the Constitution and to honour the people of Pakistan who have adopted and given to themselves this Constitution.

15. Yahya Afridi, J. has however found Constitutional Petition No. 17/2019 as non-maintainable. Herein below are the detailed reasons for this short order. MAINTAINABILITY

13. The first matter which requires our consideration is the issue of maintainability of this petition under Article 184(3) of the Constitution. Although no objection has been raised by the learned counsel for the respondents in this regard, it is still the bounden duty of this Court to establish the requisite jurisdictional facts under Article 184(3) regardless of whether the said point has been agitated or not. An examination of the jurisprudence of this Court makes it clear that in order to invoke its original jurisdiction under Article 184(3) of the Constitution, the impugned action must be shown to involve a matter of public importance arising from the breach of a fundamental right which affects the public at large. These Constitutional criteria have been reiterated in the case of Al-Jehad Trust and another v. Lahore High Court (2011 SCMR 1688) in which this Court held: "11: ...unless the matter is of public importance relating to the enforcement of any of the fundamental rights conferred by Part II, Chapter 1 of the Constitution (Articles 8 to 28), the jurisdiction of the Court under Article 184(3) of the Constitution, cannot be invoked. The mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, will not attract the jurisdiction of this Court under Article 184(3) of the Constitution."

14. The fundamental right of the general public which is claimed by the petitioner to be under threat is the derivative right of the independence of the judiciary. This right is an essential prerequisite for the enjoyment of, inter alia, the principal fundamental right to access justice which is guaranteed to the people of Pakistan by Articles 4, 9 and 10-A of the Constitution. This Court in Sh. Riaz-Ul-Haq v. Federation of Pakistan (PLD 2013 SC 501) observed that: "28: It is to be noted that the right of "access to justice to all" is a well recognized inviolable right enshrined in Article 9 of the Constitution and is equally found in the doctrine of "due process of law". It includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal."

15. It will be useful at this stage to consider in greater detail the independence of the judiciary, in the absence of which all other facets of the right to access justice are essentially rendered null and void. Indeed, the constitutional necessity of an independent judiciary for providing such access to justice to the public has been elaborated succinctly in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61): "60: I would, therefore, conclude and hold that access to justice was a Fundamental Right which the Constitution had guaranteed to the people; that the existence of an independent and vibrant judiciary was indispensable and crucial for the enjoyment of the said constitutional assurance and in the absence thereof, this right would be a mere illusion; that without security to the Judges of the Superior Courts vis-a-vis, inter alia, their service and the tenure thereof, the independence of judiciary would be a mere delusion and a chimera;..." Two crucial points emerge from the above quoted passage: i. Firstly, it holds that any unlawful interference with Article 179 of the Constitution (which fixes the tenure of the Judges of the Supreme Court and sets the retiring age at 65 years), and any illegal bypass of the mechanism set out in Article 209 of the Constitution (which provides the procedure for the removal of Superior Court Judges) is an interference with the right to access justice. This is because such breaches erode the independence of the judiciary. ii. Secondly, it affirms that although each individual Judge is guaranteed the right to be independent by the Constitution, it is in essence the judiciary as a whole whose independence has to be secured and protected. Learned counsel for both the petitioner and the Bar Councils and Associations were at pains to stress this last point. It was emphasised by the latter that their principled stand was not just for the petitioner rather it was for the institution. It was the assault and targeting of the judiciary and the grave dangers which this posed to the right to access justice that compelled the Bar Councils and Associations to file the connected petitions.

16. However, in focusing on protecting Judges from the clutches of the Executive, learned counsel have failed to notice that the counterpoise of this fundamental right is judicial accountability. This necessarily follows from the indisputable fact that the independence of the judiciary is not primarily for the benefit of the Judges, but exists instead to secure the interests, rights and benefits enjoyed by the whole of society. Therefore, if one were to focus only on the protection of the judiciary from the depredations of the organs of the State (howsoever vitally important and crucial that may be), it will not be the independence of judiciary that will result but rather it would be the rule of Judges without any checks and balances. Accordingly, it is only fitting that judicial independence and accountability are treated as being complementary to each other. With that being said, it has to be kept in mind that the petitioner has alleged that there have been serious violations of Article 209(5) of the Constitution in the preparation of the Reference against him. As we have already observed, unlawful infringements of Article 209 erode the independence of the judiciary which is directly connected with the right to access justice. Therefore, the present petition satisfies the two-fold requirement of Article 184(3) of the Constitution.

17. Be that as it may, learned counsel for the respondents has objected to the maintainability of the petition on the ground that the SJC has taken cognizance of the Reference by issuing a SCN to the petitioner. This happened after SJC took into consideration the petitioner's Preliminary Response dated 28.06.2019 and Interim Reply dated 31.07.2019 on the merits of the Reference. However, as our short order dated 19.06.2020 has declared the Reference to be of no legal effect, this contention of the learned counsel is misplaced. The SCN issued by the SJC to the petitioner is premised on grounds given in the Reference. These have been held by us to suffer from serious illegalities. Notwithstanding the fact that the veracity and substance of the underlying factual information of ownership of the London Properties is not denied and remains intact, the SCN cannot survive on its own. This is for two reasons: firstly, although the factual matrix set out in the Reference attributes misconduct to the petitioner, the information contained in it without more is insufficient to sustain a reference for the removal of a Judge of the Superior Courts. Secondly, the allegations in the SCN that are derived from the Reference are discredited by the same illegalities that invalidate the grounds of the Reference. Therefore, the SCN stands abated.

18. Learned counsel for the respondents has countered this line of reasoning by invoking the ouster clause contained in Article 211 of the Constitution. For ease of reference, this provision is produced below: "

211. Bar of Jurisdiction. The proceedings before the Council, its report to the President and the removal of a Judge under clause (6) of Article 209 shall not be called in question in any court." He has submitted that Article 211 ibid mandates that proceedings before the SJC are to be accorded a high degree of respect. He urged that such deference was confirmed in the Chief Justice of Pakistan case (supra) which limited a challenge to the proceedings before the SJC to the following grounds: "102: Having thus looked into the question of jurisdiction of this Court vis-a-vis the Supreme Judicial Council, I would conclude as under:-- (c) that the ouster clause of Article 211 of the Constitution would not protect acts which were mala fide or coram non judice or were acts taken without jurisdiction;"

19. He argued that because learned counsel for the petitioner did not press any of the three grounds mentioned in the Chief Justice of Pakistan case (supra), namely, coram non judice or actions that are mala fide or without jurisdiction, against the SJC during oral submissions, this Bench could not quash the SCN issued to the petitioner. While we are in complete agreement with the learned counsel's submission so far as it deals with the degree of respect to be afforded to the SJC and the sanctity attached to its proceedings, we cannot accept the conclusion that he has drawn from this argument. Such reasoning fails to grasp the crucial point that we have neither adjudicated upon the process of the SJC nor quashed its SCN issued to the petitioner. In fact, in view of the findings recorded in this judgment, we have simply abated the SCN. It is true that the factual information underlying the Reference casts a smear on the petitioner's name and cannot be ignored; however, without confronting the owners of the London Properties the information is at present inchoate to form the basis of proceedings under Article 209 of the Constitution. In these circumstances, we have agreed with the petitioner's plea that the same must be verified to test the veracity of the inference drawn in the Reference about the source of funds. Nevertheless, as the latter has been quashed, the SCN issued by the SJC has no foundation except for the preliminary factual information contained in the Reference. In this situation, the SCN has rightly been abated because it also lacks the factual and legal material on which the Reference was based. Accordingly, Article 211 has no application to the available facts of the present case.

20. Before parting with this area of discussion, we would like to clarify a very crucial aspect of this case that we believe has led to some confusion: namely, what standard of review ought to be applied by the Court for determining whether a reference filed before the SJC is legal or not. During oral submissions, learned counsel for the petitioner relied upon the Chief Justice of Pakistan case (supra) to argue that pre-reference proceedings can be struck down on judicial review grounds. The relevant portion from the judgment is produced below: "70: Having thus examined all aspects of this question, I would conclude and would consequently declare:-- .. (d) that the said matters not hit by the mischief of Article 211 and mentioned above, would be subject to examination, scrutiny and judicial review like any other executive or administrative act." (emphasis supplied)

21. However, learned counsel's reliance on the Chief Justice of Pakistan case (supra) for this point is of minor significance. In that case the Full Bench quashed the reference against the (then) Chief Justice on the ground of malice in fact. Nowhere does the judgment use any of the judicial review grounds to set aside the reference. Nonetheless, out of respect for the Larger Bench hearing the Chief Justice of Pakistan case (supra), we can only convey our reservations and not our disagreement with the aforesaid observation.

22. Be that as it may, it is by now well-settled that SJC is a unique (and the only) body which can examine the conduct of a Superior Court Judge and decide whether the said Judge is fit to complete his tenure. Reliance in this regard is placed on the case of Khan Asfandyar Wali and others v. Federation of Pakistan (PLD 2001 SC 607): "Page 946: The Supreme Judicial Council is a unique institution, which comprises the senior most Judges in judicial hierarchy and entrusted with the onerous responsibility of deciding complaints that are referred to it through references by the President alone. It is an essential prerequisite of the independence of judiciary that there is put in place a system of accountability. It should, therefore, be the endeavour of the Judges of the Superior Courts to make the Code fully applicable and ensure that it is strictly adhered to. As held in the case of Zafar Ali Shah (supra), the Judges of the Superior Courts are not immune from accountability. They are accountable only in the manner laid down under Article 209 of the Constitution." (emphasis supplied) It may be noticed from the above quoted passage that the sanctity and uniqueness of the SJC is enhanced by its composition. It is comprised of the three senior most Judges in the country and the two senior most Chief Justices of the High Courts (ref: Article 209(2) of the Constitution). Indeed, the significant impact of the SJC's composition on the removal process of Judges was acknowledged in The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585): "Page 602: ...The forum [SJC] consists of Judges of superior Courts who also belong to the same profession. To be tried by one's peers is a protection because they understand one's difficulties, problems and the situation in which one was." This dictum was subsequently approved in the Chief Justice of Pakistan case (supra) at para-98. However, if we hold today that a reference, which is an executive action under the Constitution, forwarded to the SJC can be struck down on ordinary judicial review grounds such as unreasonableness and proportionality we will be belittling its status, ignoring its competence and pre-empting its decisions based on appreciation of the record. We should endeavour to avoid taking any such step which goes against the spirit and intent of the Constitution. But this is precisely the course of action we will be choosing if the standard of judicial review is adopted to examine the legality of pre-reference proceedings. To exemplify this standard reliance is placed on the decision in Sabir Iqbal v. Cantonment Board, Peshawar (PLD 2019 SC 189): "5: ... The court can examine and judicially review the executive discretion exercised by the authorized officer on the ground of proportionality. Alongside reasonableness, proportionality is now a central standard directing the action of the executive branch... Proportionality is a standard that examines the relationship between the objective the executive branch wishes to achieve, which has the potential of infringing upon a human right, and the means it has chosen in order to achieve that infringing objective. The fiduciary duty, from which the administrative duty of fairness and administrative reasonableness are derived, demands administrative proportionality as well... An administrative measure must not be more drastic than necessary or to sum up in a phrase - not taking a sledgehammer to crack a nut. According to De Smith's Judicial Review, the standards of proportionality and unreasonableness are inextricably intertwined. Unreasonableness contains two elements of proportionality when it requires the weight of relevant considerations to be fairly balanced and when it forbids unduly oppressive decisions. Under the first element, proportionality is a test requiring the decision- maker to maintain a fair balance. Under this category the courts evaluate whether manifestly disproportionate weight has been attached to one or other considerations relevant to the decision. The second element is that the courts consider whether there has been a disproportionate interference with the claimants rights or interests. A more sophisticated version of proportionality provides for a structured test. Here the courts ask first whether the measure, which is being challenged, is suitable to attaining the identified ends (the test of suitability). Suitability here includes the notion of "rational connection" between the means and ends. The next step asks whether the measure is necessary and whether a less restrictive or onerous method could have been adopted (the test of necessity - requiring minimum impairment of the rights or interest in question)." (emphasis supplied)

23. It may be noticed from the above quoted passage that the scope of judicial review is not only vast but may also be intertwined with the merits of a case. We have already observed that SJC is the only constitutional authority which can examine the conduct of a Judge of the Superior Courts. Therefore, giving the power of judicial review to this Court to set aside pre-reference proceedings will be tantamount to rejecting the capacity and jurisdiction of the SJC to adjudicate upon any question of unreasonableness, proportionality or suitability raised in relation to the merits of the President's actions. It will also open the floodgates of litigation by Judges who are the subject of a Reference. This prima facie appears to be contrary to the meaning of Article 209 of the Constitution which entrusts all matters regarding the merits of a case to a high powered Constitutional domestic forum within the judiciary. It is also pertinent to mention here that even learned counsel for the petitioner challenged the pre-Reference proceedings in the present case on the grounds of mala fides and not judicial review. THE CASE AGAINST THE PETITIONER

24. Before examining the questions of law raised in this petition, it will be useful to consider the provisions of Article 209 of the Constitution under which the present Reference has been filed: "

209. Supreme Judicial Council. (1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council. (2) The Council shall consist of, (a) the Chief Justice of Pakistan; (b) the two next most senior Judges of the Supreme Court; and (c) the two most senior Chief Justices of High Courts. Explanation:- For the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice [otherwise than as acting Chief Justice], and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts. (3) If at any time the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then (a) if such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and (b) if such member is the Chief Justice of a High Court; the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place. (4) If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority. (5) If, on information from any source, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court- (a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or (b) may have been guilty of misconduct, the President shall direct the Council to, or the Council may, on its own motion, inquire into the matter." (6) If, after inquiring into the matter, the Council reports to the President that it is of the opinion, (a) that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and (b) that he should be removed from office, the President may remove the Judge from office. (7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article. (8) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts." (emphasis supplied)

25. It may be noticed from the above quoted sub-Article 209(5) that proceedings by the SJC may be initiated on grounds of misconduct or physical or mental incapacity of a Superior Court Judge. In the present case, the Reference has alleged misconduct on the part of the petitioner to seek his removal from office. It is specifically alleged that the petitioner has committed a violation of Section 116 of the Ordinance. This has led to the question of source of funds, the violation of the money laundering regime and the provisions of Foreign Exchange Regulation Act, 1947 ("FERA").

26. Although seemingly straightforward, the word 'misconduct' has drawn extensive arguments from both sides. Moreover, despite the significance of this term, it has so far escaped a comprehensive definition. Article 209(5) of the Constitution, which is the primary provision dealing with the removal of Superior Court Judges, does not define it. Even the Code of Conduct ("CoC") issued under Article 209(8) of the Constitution to regulate the conduct of Superior Court Judges does not attribute any meaning to this term. However, it does prescribe the norms and standards of good judicial and personal behaviour expected of Judges. Therefore, any conduct which conflicts with the mandated norms in the CoC can attract scrutiny for possible misconduct. For instance, the CoC observes that the prime duty of a Judge of the Superior Courts 'is to present before the public an image of justice of the nation' (ref: Preamble of CoC). It also makes reference to the Oath of the Judges and their solemn duty to uphold and submit to the Constitution and the law (ref: Preamble of CoC). Therefore, simply put the CoC expects that Judges will conduct themselves with integrity, propriety and dignity both in their public and private lives and will not engage in controversy. It would be useful at this stage to set out what these generic terms actually entail: "Chambers Dictionary Page 471: Dignity: elevation of mind or character; Page 869: Integrity: uprightness; honesty; purity. Page 1376: Propriety: conformity with good manners; conformity with convention in language and conduct;" It thus becomes clear that the CoC primarily provides guidance to Judges of Superior Courts on the exemplary qualities they must possess. Therefore, conduct that diverges from these qualities would constitute misconduct. However, ultimately the CoC is silent about the meaning of misconduct. Be that as it may, the Supreme Judicial Council Procedure of Enquiry, 2005 ("2005 Rules"), framed by the SJC, has drawn wisdom from case-law and the CoC to state certain general standards for Judges of the Superior Courts, namely: "

3. Definitions: In the present Procedure, unless the context provides otherwise, the following expressions used in the Procedure will have the meaning as assigned to them hereunder; ................................................... (l) "Misconduct", includes, (i) conduct unbecoming of a Judge, (ii) is in disregard of the Code of Conduct issued under Article 209(8) of the Constitution of Islamic Republic of Pakistan, (iii) is found to be inefficient or has ceased to be efficient."

27. In practical terms, Rule 3(l)(i) succinctly encapsulates the normative standards of misconduct provided in the CoC whilst Rule 3(l) (iii) includes an objective criterion that relates to a Judge's professional performance. Both criteria are consistent with the CoC and are primarily explanatory rather than definitional. The sanctity of the 2005 Rules can be traced to their Constitutional origin as these have been framed by the SJC in the exercise of its implied power to facilitate its own proceedings. Such status of the 2005 Rules has been affirmed by this Court in Justice Shaukat Aziz Siddiqui v. Federation of Pakistan (PLD 2018 SC 538) at para-60 which is produced below: "60: The aforesaid leaves no manner of doubt that where the Constitution creates a forum (SJC) vested with the jurisdiction of accountability of the Judges of the Superior Courts and holders of other high Offices as mentioned in the Constitution or the law, such forum (SJC) has implied and ancillary power to give effect to the mandate of the Constitution, more particularly, by devising its own procedure." (emphasis supplied) Since the 2005 Rules have been framed by the SJC to implement its mandate and regulate its own proceedings, these carry special force and thus stand on a higher pedestal than ordinary laws. These Rules provide guidelines for the conduct of SJC proceedings and the exercise of its jurisdiction. Indeed, the SJC as the constitutionally empowered body has been utilising the criteria of misconduct noted in Rule 3(l) of the 2005 Rules and elaborated upon in the CoC to assess the culpability of Superior Court Judges.

28. To assist us on this matter learned counsel for the petitioner, Mr. Babar Sattar, submitted that the CoC imposes two separate obligations on Superior Court Judges: duties that are peculiar to judicial conduct and responsibilities that are specific to personal conduct. It was his case that it is only conduct which is connected with the office of a Judge that can form the basis of a Reference against the petitioner under Article 209(5) of the Constitution. Any other wrong committed by the petitioner in his personal life which has no connection whatsoever with his office can only be visited upon by penalties provided for the wrong committed under the relevant law. He further argued that only such misconduct of the petitioner is cognizable by the SJC that is committed during the former's current service as a Supreme Court Judge. Any misconduct committed previously by the petitioner during his tenure as the Chief Justice of Baluchistan High Court stands absolved. Next, he canvassed the proposition that the petitioner is only responsible for his own personal conduct and not that of his independent wife and children. On this analysis, learned counsel concluded that none of the allegations contained in the Reference satisfied the test of misconduct propounded by him. The London Properties he stated were owned by the Mrs. Isa and her children. Therefore, any justification for an alleged violation of the relevant law in Section 116 of the Ordinance and any explanation for the source of funds had to be sought from the petitioner's family and not the petitioner himself. In so far as the allegations of money laundering or FERA were concerned, learned counsel stated that there was simply no material before the Law Minister, PM and President which justified the inclusion of these charges in the Reference against the petitioner.

29. On the converse, learned counsel for the respondents, relying on case-law from Pakistan and India, argued that the test for misconduct is not whether it violates any prescribed law or rules, rather the test is whether the conduct alleged is wrong, or improper or fails to conform with the standards and norms expected of a Judge. This he submitted would include not only the professional conduct of a Judge but also his conduct in private life (whether that be his own conduct or the conduct of his family members). Furthermore, he stated such a test is concerned only with the gravity of the alleged misconduct and not the era in which such misconduct is said to have been committed. Therefore, in his opinion the factual matrix narrated in the Reference prima facie did disclose a case of misconduct against the petitioner. He stated that the London Properties were acquired in the names of the petitioner's family members at a time when the petitioner was the Chief Justice of Balochistan High Court i.e. he was a public office holder. Moreover, neither Mrs. Isa nor the petitioner had declared these properties in their wealth statements filed with the Inland Revenue authorities. Proof of this could be found in the Assistant Commissioner's (Inland Revenue) letter dated 10.05.2019. However, he argued the evidence which called for a Reference of misconduct to be filed were the tax returns of Mrs. Isa and the petitioner. The former's returns showed that she did not have sufficient funds for the purchase of these properties (the children have not filed any tax returns), while the latter's returns disclosed that he in fact did possess surplus funds. As a result, he submitted that such non-declaration of the London Properties on the part of the petitioner and Mrs. Isa coupled with their respective financial position, and the plain meaning of Section 116(1)(b) of the Ordinance supported the presumption that it was actually the petitioner who had financed these properties. Accordingly, an answer had to be provided by the petitioner about the source of funds to rule out any violation of Section 116 of the Ordinance and the money laundering regime. Such an answer could only be sought by the SJC which is why the Reference was filed against the petitioner.

30. In our considered view, to determine whether the facts of this case warranted the filing of a Reference alleging misconduct against the petitioner, the substance of the term 'misconduct' needs to be examined. Article 209(5) of the Constitution sets out misconduct as one of the two grounds of removal of a Superior Court Judge. Therefore, any meaning ascribed to misconduct should be consistent with the object of Article

209. Two decisions describe the purpose of Article 209 succinctly. The first is the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) in which Justice Manzoor Hussain Sial held that: "Page 537: Undoubtedly, Article 209 guarantees the tenure of office of a Judge and explicitly secures the independence of Judiciary, which is dominant intent of the Constitution..." The second case is Syed Zafar Ali Shah v. General Pervaiz Musharraf (PLD 2000 SC 869) in which this Court observed: "Page 1211: Clearly, the Judges of the Superior Judiciary enjoy constitutional guarantee against arbitrary removal. They can be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise." It thus becomes obvious that Article 209 serves two purposes: i. It provides security of tenure to Superior Court Judges by allowing them to be judged by their own peers thus insulating the removal process from the clutches of the Executive; and ii. It also holds Superior Court Judges accountable for their wrongdoings by providing a mechanism for their removal. The aforenoted two purposes are evidenced by Article 209(7) of the Constitution which reads: "

209. Supreme Judicial Council (7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article." In the above background, Article 209(5) limits the grounds of unfitness for the removal of Judges while Article 209(7) guarantees that honest, competent and independent Judges do not become the target of a hostile Government/ Executive. Therefore, the threshold that constitutes misconduct for the purposes of Judges of the Superior Courts should manifest this intent and spirit of Article 209 of the Constitution. Accordingly, the standard for the commission of misconduct must not be so high that it is impossible to allege thus rendering Judges unanswerable for their conduct. On the other hand, the threshold for misconduct must also not be so lenient so as to become a weapon in the hands of disgruntled litigants, interest groups or Executive against honest, competent and independent Judges.

31. Against this background, one can now examine the features of misconduct recognised under Article 209(5) of the Constitution. The starting point in this regard should be the seminal judgment of this Court in The State v. Mr. Justice Akhlaque Husain (PLD 1960 SC 26). The relevant portion is reproduced below: Page 32: "... the word "misbehaviour" must be understood in its ordinary sense, viz. as implying misconduct, that is to say, conduct which is unbecoming of a Judge or renders him unfit for the performance of the duties of his office, or is calculated to destroy public confidence in him... We cannot therefore accept the respondent's contention that it is only on proof of misconduct in respect of a judicial proceeding or in respect of office or on proof of conviction that a High Court Judge may be removed and that no other conduct, however infamous or scandalous, or whatever defect of character it might disclose, can ever be a ground for his removal." (emphasis supplied) This dictum was followed and approved in the Shaukat Ali case (supra) at page

623. Since the formulation is non-exhaustive, it gives discretion to the SJC to determine whether any alleged conduct of a Judge comes under the purview of misconduct. It also lays down a high threshold of misconduct to ensure that trivial indiscretions or infractions of the law by Judges or any minor shortcomings in their personal lives do not render them liable to removal proceedings. At the same time it protects the integrity of the judicial institution by allowing for the removal of Judges whose conduct without constituting a violation of a prescribed law is so improper that it renders such Judge unfit for holding judicial office. In fact, the meaning of misconduct gathered from the CoC also exemplifies this construction. As noted above, although the CoC does not contain a definition of misconduct, it does contain norms, conventions and guidance (reflected in its Articles) on the standards to be met by Superior Court Judges in their professional and private lives. What is notable about such guidance is that it hardly incorporates any legal obligations in the Code. Instead the Articles primarily consist of ethical guidelines and traditional norms and standards expected of a Judge. For instance, the Preamble to the CoC reads as follows: "...To be a living embodiment of these powers, functions, and obligations calls for possession of the highest qualities of intellect and character. Equally, it imposes patterns of behavior, which are the hall-mark of distinction of a Judge among his fellow-men." Likewise, Article III observes: "Article-III: To be above reproach, and for this purpose to keep his conduct in all things, official and private, free from impropriety is expected of a Judge." Similarly, Article V states: "Article-V: Functioning as he does in full view of the public, a Judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law." Lastly, we have Article VI which requires: "Article-VI: A Judge should endeavor to avoid, as far as possible, being involved, either on his own behalf or on behalf of others, in litigation or in matters which are liable to lead to litigation such as industry, trade or speculative transactions. To employ the influence of his position to gain undue advantage, whether immediate or future, is a grave fault. A Judge must avoid incurring financial or other obligations to private institutions or persons such as may embarrass him in the performance of his functions." (emphasis supplied)

32. It may be noticed that the above Articles of the CoC are non-legal in nature. A violation of any of these Articles would neither sustain a civil lawsuit nor a criminal prosecution. However, an infringement thereof may very well lead to disciplinary proceedings under Article 209(5) of the Constitution. But, this is not the only remarkable feature of the CoC. For instance, on a careful examination of Article III, it can be observed that it expects Superior Court Judges to keep their conduct in all aspects of their lives, including private life, free from impropriety. Furthermore, Article VI calls upon Judges to avoid litigation and to be diligent in their financial affairs to minimise the chance of any embarrassment in the performance of their functions. This very clearly means that the CoC does not only expect impeccable behaviour from a Judge in the courtroom but it also expects him to maintain these high standards of integrity, propriety and dignity outside the Court. Such qualities and conduct are necessary to preserve not only the prestige and honour of the Judge but also the prestige and honour of the institution of the judiciary. Therefore, the contention of the learned counsel for the petitioner that the allegations against the petitioner pertain to his personal life and so cannot become the basis for a Reference has no force. Accordingly, there is no doubt in our minds that the interpretation of misconduct set out by this Court in the Justice Akhlaque Hussain case (supra) reflects the intent and spirit of Article 209(5) of the Constitution, the CoC and the 2005 Rules.

33. Additionally, the threshold of misconduct adopted by this Court and approved by the SJC is also similar to the tests used by Disciplinary Committees and Parliaments of foreign jurisdictions for the removal of Judges. For example, the requirement of upholding the confidence of the public is not unique to our Courts. In fact, it is a criterion which is applied across the world to enforce accountability of Judges and other public office holders. In Lawrence v. Attorney General of Grenada (2007 UKPC 18 at para-25) the Privy Council approved a passage from Clark v. Vanstone (2004 FCA 1105) in which the Federal Court of Australia held: "Para 85: ...For present purposes, the important proposition to be drawn from these expressions of opinion is that, in a case in which the term 'misbehaviour' is used with reference to the holder of an office, the content of its meaning is to be determined by reference to the effect of the conduct on the capacity of the person to continue to hold the office. In turn, the capacity to continue to hold an office has two aspects. The conduct of the person concerned might be such that it affects directly the person's ability to carry out the office. Alternatively, or in addition, it may affect the perceptions of others in relation to the office, so that any purported performance of the duties of the office will be perceived widely as corrupt, improper or inimical to the interests of the persons, or the organisation, for whose benefit the functions of the office are performed." (emphasis supplied) This passage was cited again with approval by the majority of the Privy Council in Hearing on the Report of the Chief Justice of Gibraltar (2009 UKPC 43 at para-202). Even in the United States, where the process of impeachment of Judges is initiated by a Resolution of the House of Representatives ("House"), the Report dated 10.05.1989 accompanying the Resolution to Impeach United States District Judge Walter L. Nixon, Jr (ref: Report No. 101) stated: "Page 12: ...thus, from an historical perspective the question of what conduct by a Federal judge constitutes an impeachable offense has evolved to the position where the focus is now on public confidence in the integrity and impartiality of the judiciary. When a judge's conduct calls into questions his or her integrity or impartiality, Congress must consider whether impeachment and removal of the judge from office is necessary to protect the integrity of the judicial branch and uphold the public trust." (emphasis supplied) Likewise in Australia, Sir George Bush sitting in the Parliamentary Commission inquiring into the alleged misconduct of Justice Lionel Keith Murphy, Judge High Court of Australia, held: "Page 8: If [judges] conduct, even in matters remote from their work, is such that it would be judged by the standards of the time to throw doubt on their own suitability to continue in office, or to undermine their authority as judges or the standing of their courts, it may be appropriate to remove them." (emphasis supplied) Even in the Justice Shaukat Ali case (supra), the SJC observed that: "Page 602: ...It [inquiry by SJC] is simply the conduct of a Judge which is to be properly reviewed in the interest of the purity and honour of the judiciary..." This dictum was later cited with approval in the Chief Justice of Pakistan case (supra) at para-98. These tests, therefore, not only affirm this Court's interpretation of misconduct but also (again) dispel the contention of the learned counsel for the petitioner that only conduct which has a nexus with the petitioner's office can be the basis of an information under Article 209(5) of the Constitution. In fact, misconduct is any conduct of the Judge which damages the publics perception about his ability to discharge his duties or which undermines public confidence in the institution of the judiciary regardless of whether such conduct occurs in the professional arena or in the private life of a Judge.

34. As far the learned counsel's contention that the petitioner can only be removed for misconduct committed during his tenure as a Supreme Court Judge, it will suffice to reproduce what the House held in its report dated 08.07.1912 against Robert Wodrow Archbald, Judge of the United States Court of Appeal for the Third Circuit (Pennsylvania, New Jersey, Delaware and Virgin Islands) (ref: Report No. 946): "Page 175: It is indeed anomalous if the Congress is powerless to remove a[n] ... unfit Federal judge from office because his... misdemeanor, however vicious or reprehensible, may have occurred during his tenure in some other judicial office under the Government of the United States prior to his appointment to the particular office from which he is sought to be ousted by impeachment, although he may have held a Federal judgeship continuously from the time of the commission of his offenses. Surely the House of Representatives will not recognize nor the Senate apply such a narrow and technical construction of the constitutional provisions relating to impeachments." (emphasis supplied) Similarly, the House in its report dated 04.03.2010 against G. Thomas Porteous, Jr., Judge of the United States District Court for the Eastern District of Louisiana (ref: Report 427) noted that the critical question which needs to be addressed by the House and Congress is whether the alleged misconduct demonstrates a lack of integrity and judgment in the Judge which makes him unsuitable to continue to perform the functions of his post. The timing of the misconduct is irrelevant to such a determination (page 19) . Indeed, by accepting the contention of the learned counsel for the petitioner that a time bar should be imported into the process of judicial accountability, we would be granting immunity to Judges who have committed serious misconduct in their previous posts. This would be contrary to the demand for transparency and fairness in the accountability of Judges, especially when it is self-evident that previous behaviour of a Judge is a reflection of his character, disposition and professional or private ethics. Therefore, the submission of the learned counsel that the alleged misconduct of the petitioner has become a past and closed transaction because it was committed during his time as a High Court Judge is incorrect.

35. Lastly, learned counsel for the petitioner also raised the argument that the petitioner was not accountable for the financial affairs of his independent wife and adult children. While there is no cavil to the proposition that "the days are long gone when a husband and wife were treated as one person in law and the husband was that person" (ref: Chief Justice of Gibraltar case (supra) at para-257), the fact of the matter is that when it comes to public office holders the situation is different. Judges, like other public office holders, occupy a position of sacred trust. They hold positions where they exercise power and authority under the law. Under the Constitution and the law, such a position carries certain benefits and privileges accompanied by obligations and responsibilities. A Judge of the Superior Court is entitled to these perks and benefits which are also enjoyed by his spouse and family. Some of these benefits and privileges available to the spouse and family of a Judge of the Superior Courts are: A. During Service i. A medical allowance (ref: Rule 10 of The Federal Service Medical Attendance Rules, 1990); ii. A travel allowance (ref: Rules 3(4)(i) and 4(i) of The Supreme Court Judges (Travelling Allowance) Rules, 1958); and iii. The use of a Government maintained residence and an official car at the residence (Rules 20, and 21 of Supreme Court Judges (Leave, Pension and Privileges) Order, 1997) . B. After Service i. A pension to the spouse after the death of the Judge (ref: Clause 4 of the Fifth Schedule to the Constitution) ii. A medical allowance (ref: Rule 10 of The Federal Service Medical Attendance Rules, 1990); iii. The services of a driver and an orderly (ref: Rule 25 Supreme Court Judges (Leave, Pension and Privileges) Order, 1997); and iv. 3000 free local telephone calls per month, 2000 units of electricity and 25HM3 of gas per month, free supply of water and 300 litres of petrol per month (ref: Rule 25 Supreme Court Judges (Leave, Pension and Privileges) Order, 1997).

36. As alluded above, these entitlements of the Judge which he shares with his family [his spouse and members of his family who are either dependent on him or with whom he has financial dealings ("family members")] also carry certain responsibilities and obligations. One such obligation is the duty to enjoy these privileges with dignity, probity and discretion. Apart from the material benefits enjoyed by a Judge's family members during and after his service, they also receive an advantage from the respect and recognition extended, through association, by people who interact with them. In these circumstances, the family members of a Judge are required to be careful (financially, socially and politically), moderate and fair in their dealings and exchange with others so that no controversy arises which may embarrass the Judge. Although these responsibilities are shared by family members of all public office holders, they apply with particular force to family members of Judges as the latter are expected to be the embodiment of a person who is 'God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed' (ref: Article II of CoC). Accordingly, high standards of propriety are expected of a Judge and his family members. This is precisely why in a case of impropriety alleged against the son of a learned Judge, Justice Khilji Arif Hussain observed in Suo Motu Case No. 5 of 2012 (PLD 2012 SC 664) that: "Page 679: Although family members of public functionaries are, properly speaking, not performing State functions, the alleged facts of this case highlight the necessity of extreme caution and discretion in their private and public dealings and conduct."

37. Generally, every adult individual is recognised in law as an independent entity. However, different principles apply in relation to family members of public office holders. This is because any irresponsible act on the part of a family member may reflect adversely on the Judge. This approach is recognised by the Judicial Codes of Conduct of various countries. The Guide to Judicial Conduct for Australian Judges states: "Page 41: ...Issues involving a judge's relatives, especially close relatives, can give rise to particularly difficult questions... There are likely to be situations in which the activities or careers of relatives attract consideration of the principles identified in the Guide, because the situation presents an issue under the Guide which the judge must address... The response by a judge to such matters will depend on the particular circumstances. Matters affecting a spouse's or partner's career or appointment will, for example, call for consideration of public attitudes or perceptions, the kind of activity the partner engages in, the other persons present or participating... These are examples only. In the end, each situation must be resolved by the judge applying the principles identified in the Guide. A central issue will always be whether and how the situation might reflect adversely on the judge or the judiciary or might diminish public confidence in them." (emphasis supplied) Taking the connection between a Judge and his family in financial matters a step closer are the Bangalore Principles of Judicial Conduct ("Principles") which were drafted in 2001 and endorsed in 2002 by the Judicial Group on Strengthening Judicial Integrity (a body consisting of senior Judges from various legal systems of the world). These principles were later endorsed by the United Nations Economic and Social Council on 27.07.2006 in its Resolution 2006/23: "Resolution 2006/23 Strengthening basic principles of judicial conduct ..

1. Invites Member States, consistent with their domestic legal systems, to encourage their judiciaries to take into consideration the Bangalore Principles of Judicial Conduct, annexed to the present resolution, when reviewing or developing rules with respect to the professional and ethical conduct of members of the judiciary; ..." Under the heading of propriety, Rule 4.7 of the Principles reads: "Value 4: PROPRIETY Principle: Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge. .. 4.7: A judge shall inform himself or herself about the judge's personal and fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of the judge's family." To remove any doubts about what constitutes the family of a Judge, the Principles define a Judge's family to include: "DEFINITIONS "Judge's family" includes a judge's spouse, son, daughter, son-in-law, daughter-in-law, and any other close relative or person who is a companion or employee of the judge and who lives in the judge's household." An obligation similar to the one set out in Rule 4.7 is also present in Canon 3(C)(2) of the United States Code of Conduct for Federal Judges. In essence, the above obligations require a Judge to make reasonable efforts to be aware about the financial affairs of his family members. This precaution helps to forewarn him about extraneous influences or vested interests which can compromise not only his independence and credibility but also in the words of this Court in Justice Shaukat Ali's case (supra) the "purity and honour" of the institution to which he belongs.

38. At first glance an obligation to remain informed about the financial affairs of one's family members seems archaic because modern jurisprudence emphasises the protection of the rights of the individual against the State and society. However, to understand the rationale behind the obligation on Judges to make reasonable efforts to be informed about or to watch over the financial affairs of their family members, one has to understand the nexus of this obligation with the nature of Judges work and the position they occupy in society. As has been held above, Judges exercise pre-eminent authority under the law. They adjudicate disputes between litigants, hold parties appearing before them accountable and impose liabilities and grant relief to such parties. With their authority comes an even greater responsibility to decide cases fairly, independently and in accordance with law. In such a situation, it is imperative for a Judge that he should make reasonable efforts to be informed about the financial interests of his family members for the simple reason that if a case comes before him which directly or indirectly involves the pecuniary, proprietary or other personal interests of any of his family members, he can recuse himself. Such recusal is a manifestation of the now well-established principle of law (ref: Government of N.W.F.P v. Dr. Hussain Ahmad Haroon 2003 SCMR 104): "Page 110: It is an age-old fundamental principle of law that justice should not only be done but manifestly and undoubtedly it should seen to have been done. To achieve this objective/goal it is of prime importance that a Judge/person equipped with the authority of decision should not be having any sort of personal interest in the outcome of the matter under issue before him." (emphasis supplied) However, this is not the only object behind imposing such a burdensome obligation on Judges. Another equally, if not more, important reason for requiring Judges to be aware of the financial interests of their family members is that the law's intent is to prevent a Judge's family from becoming a conduit to discreetly influence his opinions and views. This assures the Judges independence and integrity apart from safeguarding the institution of the judiciary.

39. Likewise, the recently enacted Foreign Assets (Declaration and Repatriation) Act, 2018 ("the Act") also provides a rationale for imposing such an obligation on Judges of the Superior Courts. This piece of legislation provides an advantageous scheme to Pakistani citizens to disclose their undeclared foreign assets subject to payment of tax at a nominal rate set out in the Schedule to the Act. The object of the Act is to bring such assets on record in the documented tax economy. For obvious reasons, holders of public office are not eligible to avail this tax incentive. The significance of this Act for our purposes is that it treats the assets of the spouse and dependent children and the assets of the public office holder as identical. A Judge of the Superior Courts is included in the category of holder of public office. For ease of reference, the relevant Sections of the Act are produced below: "

2. Definitions.

(1) In this Act, unless there is anything repugnant in the subject or context,- . (h) "holder of public office" means a person who is or has been, during the preceding ten years,- . (iv) the Chief Justice or, as the case may be, a Judge of the Supreme Court, Federal Shariat Court, a High Court or a Judicial Officer whether exercising judicial or other functions or Chairman or member of a Law Commission, Chairman or Member of the Council of Islamic Ideology; ..

4. Application.

(1) The provisions of this Act shall apply to-(a) all citizens of Pakistan wherever they may be, except holders of public office, their spouses and dependent children;" (emphasis supplied)

40. Accordingly, neither public office holders nor their spouses and dependent children can avail the benefit of this scheme. The purpose of such an exclusion is to ensure that public office holders do not use their family members as a conduit to whiten their undeclared wealth. There is no relief in tax amnesty schemes even if the spouse is independent. This is a legal incident or consequence of being a holder of public office and introduces an element of transparent accountability in the financial matters of such officers.

41. Indeed, the Reference alludes to this element of financial accountability by implying that the London Properties are benami owned. However, it cites no evidence to support this contention. Nevertheless, during the course of his submissions, learned counsel for the petitioner submitted, after inquiring from his client, that the latter did not gift any amount of money to his family members during the preceding tax years. In any case, the elements of benami (or the evidence in support of it) need not be discussed here because it is not for us to determine at present whether the petitioner's family is his benamidar. This is a factual determination that can only be made by the competent forum after examining all the evidence. Nonetheless, unless the source of funding for the London Properties is duly explained by the petitioner's family, it will allow the resulting public controversy to continue which is neither beneficial for the petitioner in his personal capacity as a Judge nor for the institution of which he is a part.

42. Therefore, having seen that Judges are not as insulated from the conduct of their family members as are ordinary private citizens, we need to consider the extent of the obligation on Judges to be aware of the finan-cial interests of their family members. Both the UN Resolution 2006/23 (endorsing the Principles) and the United States Code of Conduct simply state that Judges need to make reasonable efforts to be informed about the financial interests of their family members. However, neither elaborate upon the scope of this obligation. Consequently, its ambit needs to be determined. To begin with, Oxford Dictionary has defined the term 'informed' in the following manner: "Oxford Dictionary: Informed: Having or showing knowledge of a subject or situation." It, therefore, becomes clear that Judges are supposed to have knowledge of the financial interests of their family members. However, if they do not, then they are expected to make reasonable efforts to acquire such information, more so when they are questioned by a competent forum to explain the financial interests of their family members. What constitutes 'reasonable effort' on the part of Judges will no doubt depend upon the circumstances of each case. However, a plea of lack of knowledge by a Judge in relation to the financial affairs of his family members is untenable in light of the general trend in international practice, the obligations imposed on a Judge under the CoC and the law relating to public office holders including Judges. Accordingly, there is a continuing obligation on a Judge to keep himself informed about the financial interests of his family members. This view is consistent with the Preamble of the CoC which emphasises that Judges of the Superior Courts of the country are role models for their fellow men and women. Such an elevated standard of conduct is demanded from Judges so that the institution of the judiciary enjoys the trust and confidence of the nation for its integrity, probity, independence and transparency. MALA FIDES

43. Having dealt with the preliminary matters arising out of this petition, we may now consider each plea of the petitioner in detail. This petition was primarily filed by the petitioner for the purposes of declaring the Reference null and void. Therefore, the bulk of the submissions of the learned counsel for the petitioner were centred around the contention that the filing of the Reference was a colourable and mala fide exercise of power. He submitted that the whole process was tainted with malice aforethought. He attributed this to the petitioner's judgment in Suo Motu Case No.7 of 2017 (PLD 2019 SC 318) ("Dharna Judgment") announced on 06.02.2019. In that case, the petitioner had passed adverse remarks against the two political parties that are presently the leading members of the ruling coalition in the Federal Government: Pakistan Tehreek-e-Insaf ("PTI") and Muttahida Qaumi Movement ("MQM"). Additionally, he had also made critical observations about the Army. The relevant extracts from this judgment are produced below: "24: The leadership of TLP must have noted that despite the daylight slaughter of innocents on the streets of Karachi on 12th May, 2007 its principal conspirators and beneficiaries were not punished. They must also have noted that when PTI-PAT had camped in the Red Zone for several months they had achieved the setting up of a judicial inquiry commission. Though the findings of the Inquiry Commission had rebutted PTI's allegations no adverse consequences followed. PTI's leadership did not even tender an apology, let alone clean up the area or pay to clean and restore it. Instead PTI received a lot of free publicity. 53: For the reasons mentioned above this case is disposed of with the following declarations and directions: .. (15) The Constitution emphatically prohibits members of the Armed Forces from engaging in any kind of political activity, which includes supporting a political party, faction or individual. The Government of Pakistan through the Ministry of Defence and the respective Chiefs of the Army, the Navy and the Air Force are directed to initiate action against the personnel under their command who are found to have violated their oath."

44. Learned counsel argued that this judgment, and in particular these remarks, angered the ruling coalition. This could be gathered from the review petitions filed by PTI and MQM against the Dharna Judgment. Both review petitions demanded the petitioner's removal from office under Article 209(5) of the Constitution for committing misconduct. He asserted that these review petitions were a coordinated exercise by PTI and MQM to oust the petitioner since they contained almost verbatim language and were even filed in Court on the same date. In addition, learned counsel also cited various other events/actions which he argued highlighted the mala fides behind the Reference. Briefly these are: i. The use of a proxy complainant, Mr. Dogar; ii. The leaking of the Reference and its contents to the media; iii. The derogatory statements made by Mrs. Firdous Ashiq Awan, Special Assistant to Prime Minister ("SAPM") on Information and Broadcasting, about the petitioner; iv. The haste with which action was taken against the petitioner after the Dharna Judgment; and v. The charged language used by the AG in his Rejoinder to the SJC.

45. From the opposing side, learned counsel for the respondents negated all claims of mala fides levelled by the petitioner. He submitted that the allegations in their present form were too vague to satisfy the high threshold of mala fide and that the petitioner had failed to discharge the burden of proof. He maintained throughout the course of oral arguments that the Reference was simply filed to ensure judicial accountability and that there was no ulterior motive of the Federal Government. He submitted that he had the highest respect for the petitioner whom he considered an elder brother.

46. We have carefully examined the record and the relevant case-law and have arrived at a conclusion. However, before we discuss the merits of our decision on this complex and fiercely debated issue, we would like to first set out what mala fides actually entail. There is an abundance of case-law on mala fides rendered by this Court in landmark judgments, such as the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) and Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 SC 151). However, there is still lack of uniformity in its definition and on the standard of proof that a party needs to satisfy in order to establish its claim of mala fide.

47. First and foremost, we shall examine the meaning of mala fide in the legal context. Traditionally, an action actuated with an ulterior purpose to harm another or benefit oneself is classified as an act that is malicious or malice in fact. However, in (relatively) recent times, this Court has recognised another category of mala fides, namely, mala fide in law. Even though both are a species of mala fide, yet each has distinct ingredients and consequences. A recent judgment of this Court in Said Zaman Khan v. Federation of Pakistan (2017 SCMR 1249) has studied not only the entire case-law on the subject but has also analysed the essential yet different ingredients of both mala fide in law and malice in fact. It would be useful at this stage to reproduce the relevant portions from the said judgment: "82: ...where any action is taken or order passed not with the intention of fulfilling its mandate or to achieve its purpose but is inspired by a collateral purpose or instigated by a personal motive to wrongfully hurt somebody or benefit oneself or another, it is said to suffer from malice of facts. In such cases, the seat of the malice or bad faith is the evil mind of the person taking the action be it spite or personal bias or ulterior motive." "83: ...where an action taken is so unreasonable, improbable or blatantly illegal that it ceases to be an action countenanced or contemplated by the law under which it is purportedly taken malice will be implied and [the] act would be deemed to suffer from malice in law or constructive malice. Strict proof of bad faith or collateral propose in such cases may not be required." "90: ... The mere allegation that an action has been taken wrongly is not sufficient to establish mala fide of facts. Specific allegations of the collateral purpose or an ulterior motive must be made and proved to the satisfaction of the Court."

48. The crux of our analysis will be focused on malice in fact since the petitioner has primarily levelled allegations of ulterior motives against the respondents. However, to present a complete picture of mala fides, two general points of importance from the above quoted observations need to be stated. First, that apart from the generally recognised category of actions driven by a foul personal motive described here as malice in fact, there is another category of reckless action in disregard of the law termed as mala fide in law. The first type of mala fide is attributed to a person whereas the second is levelled against the impugned action. While the former is concerned with a collateral purpose or an evil intention to hurt someone under the pretence of a legal action, the latter deals with actions that are manifestly illegal or so anomalous that they lack nexus with the law under which they are taken. Thus it becomes clear that malice in fact and mala fide in law have different ingredients, the former being comprised of factual elements with the latter being composed of legal features, that need to be established as such for the respective consequences to ensue. Secondly, it is clarified that an accusation of mala fide in law involves more than errors of misreading the record or non-application of the law or lack of proportionality in the impugned action. Instead, this is a serious allegation of wanton abuse or disregard of the law. However, when an ulterior motive to cause harm is proved then the repercussions of malice in fact follow. It is for this reason that a mere allegation that an action has been taken wrongly cannot be grounds to hold that such action suffers from mala fide in law or malice in fact. This is also consistent with the view propounded in para-90 of the Said Zaman case (supra).

49. The aforementioned discussion confirms that imputing mala fide of either kind to a person or an action is a grave accusation. It should not be made lightly but can only be done when the facts or legal defects justify its use. In the present case, the petitioner has alleged bad faith and ulterior motives to the respondents personally. This amounts to a plea of malice in fact which requires a high standard of proof. The rationale behind such an approach is that a plea of malice in fact frustrates the process of justice. After a complainant establishes malice in fact against a person, the entire proceeding by the latter is brought to an end. This results in the merits of the case being ignored. Moreover, the reputation of the person, against whom an allegation of malice in fact is made, becomes tarnished and if the said allegation is proved then his repute is forever ruined. He is made out to be a vicious individual who harbours ill-intentions against others. Such are the negative consequences of this plea, if established. This reasoning applies with greater force if such an allegation is made against senior public functionaries of the State. Indeed, it was for this very reason that Justice Muhammad Nawaz Abbasi in his concurring note in the Chief Justice of Pakistan case (supra) held as follows: "Page 216: ...In view thereof the mala fide of fact in the normal circumstances is required to be established through the positive evidence and not merely on the basis of allegations but the personal malice of a person in official position can be examined in the context as to whether the action in official capacity was extraneous and for collateral purpose which was taken in bad faith or such an action was in good faith." (emphasis supplied) Similarly, this Court in the Saeed Ahmed Khan case (supra) observed: Page 170: male fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mal [ a] fides." (emphasis supplied)

50. We are in complete agreement with the views expounded by the members of this Court in the above noted judgments. An allegation of malice in fact is unlike any other ordinary allegation. It carries with it a stigma for the accused which cannot easily be washed away. If a lower standard of proof for malice in fact is adopted, that would open the floodgates for recalcitrant litigants to make such allegations against their opposing side to derail the process of justice and to defame their opponents in Court. Therefore, to limit these allegations to only genuine claims of malice in fact, we hold that any person who wishes to raise this plea must prove it to the satisfaction of the Court on the basis of positive and cogent evidence.

51. Moreover, there is also an obligation on litigants to plead the particulars of malice in fact in detail. This, has already been alluded to in the Saeed Ahmed Khan case (supra) wherein it was held that vague allegations cannot establish a plea of malice in fact. Such a duty was imposed more explicitly on parties by this Court in the Begum Agha Shorish Kashmiri case (supra). The relevant portion is reproduced below: "Page 35: mala fide must be pleaded with particularity and once one kind of mala fide is alleged, the detenu should not be allowed to adduce proof of any other kind of mala fide. Enquiries are not to be launched merely on the basis of vague and indefinite allegations." (emphasis supplied) Accordingly, to raise this plea, it is necessary for the relevant party to pinpoint the specific incidents/ events/ actions which demonstrate the malice in fact of the opposing side.

52. With the foregoing background, we shall now consider each allegation raised by the petitioner to determine whether it crosses the threshold of malice in fact or not.

53. Firstly, an allegation has been made that this Reference is a direct consequence of the Dharna Judgment. The malice in fact is statedly evidenced by the review petitions filed by the coalition parties in the Federal Government before this Court. However, the recourse to a review petition is a lawful remedy granted to litigants by Article 188 of the Constitution. It, therefore, cannot be used as evidence for proving the malice in fact of the respondents. As far as the charged language used against the petitioner is concerned, it is noted that the review petition filed by PTI, which has been relied upon by the petitioner, was objected to by the office and was subsequently withdrawn. Its revision, as accepted by the learned counsel, does not contain any adverse averments against the petitioner. With respect to the review petition filed by MQM, undoubtedly it does contain the resentful remark that action needs be taken against the petitioner under Articles III, IV and V of the Code of Conduct. Such language has no place in any petition before this Court. However, the fact that the Dharna Judgment criticised the conduct of PTI and MQM without giving the two political parties a hearing may have disenchanted some members of the MQM party. Yet even such a feeling cannot justify the brazen accusations in the review petition.

54. Be that as it may, learned counsel for the petitioner contended that having availed the appropriate legal remedy of review, MQM, a minority member of the coalition government was so reviled by the Dharna Judgment that it influenced the Federal Government to file a Reference against the petitioner. This view seems implausible and does not demonstrate the plea of malice in fact urged by the petitioner. The Reference is based on Mrs. Isa's ownership of undeclared London Properties. With the blemish attached to the ownership of undeclared foreign properties, such ownership automatically attracts speculation about its status and source. In fact, in the year 2017 the SJC took cognizance of a similar information in the case of another learned Judge who resigned his office. Even the respondents' correspondence on the record shows that the SJC simultaneously received a Presidential reference on the same ground against another learned Judge of the High Court. In this perspective the filing of the present Reference cannot be held to suffer from malice in fact.

55. Indeed, recourse to a lawful remedy under Article 209(5) of the Constitution cannot be malicious unless for ill-motives an information alleges wrong or distorted or exaggerated facts, or seeks relief that is inordinate or extraneous to the undisputed facts. Furthermore, the observations in the Dharna Judgment pale in comparison to the remarks passed by this Court in Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig (PLD 2013 SC 1) in which far stronger observations about our politicians and political system failed to draw any adverse reaction from the Federal Government against any Judge. Consequently, no malice in fact is made out on this ground.

56. The learned counsel for the petitioner next attacked the initiation of the Reference for being tainted with malice in fact as the complaint against the petitioner was filed by Mr. Dogar who has a reputation of planting false stories. He stated that the respondents did not make even the slightest effort to check the credibility of Mr. Dogar and instead accepted his complaint at face value. He submitted that considering the sensitivity of the matter and the fact that the complaint was against a sitting Judge of the Supreme Court, the respondents should at the bare minimum have scrutinised the antecedents of Mr. Dogar.

57. However, such an argument ignores the general law of the land that when an information against a person (whether a public office holder or a private person) is to be evaluated, it is the substance, veracity and consequence of the information which matters and not the credibility and credentials of the informant. Reference in this regard can be made to the decision in Pakistan Tobacco Company Ltd v. Federation of Pakistan (1999 SCMR 382) in which this Court observed: "10: We are inclined to hold that the question whether a particular Constitution petition filed under Article 184(3) of the Constitution directly in this Court is maintainable is to be examined not on the basis as to who has filed the same, but the above question is to be determined with reference to the controversy raised in the Constitution petition, and if the controversy involves a question of public importance with reference to the enforcement of any of the Fundamental Rights the same will be sustainable."

58. In the present case, the information supplied by Mr. Dogar is not denied by the petitioner to the extent of ownership of the London Properties by Mrs. Isa and her children. This adds weight to the Court's observation in the above cited case. Although in the Pakistan Tobacco case (supra) this Court was mainly concerned with the maintainability of a petition filed under Article 184(3) of the Constitution, we consider that the same principles also apply to an information filed before the SJC under Article 209(5). The reason is that the receipt of information from any source is cognizable by the SJC under Article 209(5) of the Constitution and is sufficient to sustain an inquiry against a Judge of the Superior Courts. The word 'any' means that the antecedents of the informant are irrelevant unless the information is false, concocted, distorted, exaggerated or seeks relief that is excessive in relation to the accepted facts. As previously noted, the underlying information in the Reference to the extent of ownership of the London Properties by Mrs. Isa and her children is not disputed by the petitioner. Therefore, in such circumstances the background of the informant becomes insignificant. As a result, even this ground does not support the plea of malice in fact raised by the petitioner.

59. The next objection of the learned counsel for the petitioner was about the leaking of the Reference and its contents to the media. He urged that the disclosure was engineered by the respondents which constituted a violation of Rule 13 of the 2005 Rules. This provision is reproduced below: "

13. Proceedings of the Council not to be reported:-- (1) Proceedings of the Council shall be conducted in camera and shall not be open to public. (2) Only the findings of the proceedings shall be allowed to be reported. (3) Proceedings of the meetings of the Council or any other steps that Council may take shall not be reported, unless directed otherwise." There is no cavil with the proposition that a reference filed against a Superior Court Judge has to be kept confidential. The rationale for adopting such a course of action has been provided in this Court's judgment in Justice Shaukat Aziz Siddiqui and others v. Federation of Pakistan (PLD 2018 SC 538). For convenience, the relevant portion is reproduced below: "80: ...Thus, we must attempt to discover the purpose and true intent of paragraph 13 of the SJC Procedure of Enquiry 2005, which alone would hold the key to its proper contextualized interpretation. Various countries of the world have chosen either of two paths with regard to the process of accountability of Superior Court Judges. Broadly speaking, one path is through an open process including through a proceeding before a forum outside the judiciary e.g. Parliament in the full gaze of the public eye while the other path is of an insulated process of being dealt with by one's own peers. Our Constitutional Dispensation in principle has adopted the latter course of action. The framers of the Constitution of 1973 appear to have made a value judgment that such a course of action is best suited to our societal and cultural ethos, where allegations are routinely made against all and sundry without any qualms about the truthfulness or otherwise of such allegations. Perhaps the framers of the Constitution may have been inspired, in this behalf, by the mystical saint of Kasur who said that we live in the "Age of Suspicion", where people immediately believe the worst about others. It is said that the Judges like Caesar's wives ought to be above suspicion. An allegation no matter how baseless, if permitted to be made public, such Judge and his capacity to dispense justice would be irreparably prejudiced." (emphasis supplied)

60. The reasoning in the Shaukat Aziz case (supra) has also been echoed by the learned counsel for the petitioner who has lamented the loss of reputation suffered by the petitioner and the harassment which he and his family have had to endure. One can appreciate the ordeal that the petitioner and his family may have lived through from the speculative media coverage on the Reference. Nevertheless, to hold any particular respondent accountable for revealing the details of the Reference, there needs to be at least some material on record that connects the leaks to one or more of the respondents. The chronology of events reveal that the Reference was signed on 20.05.2019 by the President; and it was filed by the Secretary Law with the SJC on Thursday, 23.05.2019. However, it was only on Tuesday, 28.05.2019 that news of the Reference broke out on social media, and by 29.05.2019 most news channels and papers in the country had reported on it. It was also on 28.05.2019 that the petitioner wrote the first of his letters to the President, inter alia, requesting a copy of the Reference. This letter too was leaked the next day on the media (as was the second letter written by the petitioner on 03.06.2019) . In this chain of events, another occurrence came to light as disclosed in paragraph 43 of the petition. Shortly after the filing of the Reference, a meeting took place between the petitioner and the (then) Chairman of SJC (former Chief Justice of Pakistan). The petitioner's application CMA No 7931/19 quotes in its paragraph 20 an order by the SJC dated 19.08.2019 passed in another proceedings against the petitioner: "Pages 20-21: The above mentioned meeting of the respondent-Judge with the Chief Justice of Pakistan shows that the respondent-Judge not only knew about filing of the Reference against him by the President but also about the actual contents thereof and the allegations levelled therein before he had started writing successive letters to the President on the subject professing his ignorance about the same."

61. The petitioner has not disputed the aforesaid meeting being held prior to 28.05.2019. As a result, it is clear that the petitioner had read the Reference and was aware of the allegations made against him. Therefore, before the Reference was leaked, probably on 28.05.2019, only a handful of individuals knew of its existence: the Law Minister, AG, President, PM, (then) Chairman SJC, (then) Secretary SJC and the petitioner himself. The date of the media report about the Reference is significant. Which fresh event triggered the sudden disclosure of the Reference is not evident from the record. Therefore, although the allegation made against the respondents raises suspicion, it is still unsupported by any evidence. Consequently it cannot suffice to conclusively hold that either one or more of the respondents leaked the Reference to the media. Since we cannot on the basis of speculations and suspicions determine who leaked the Reference, therefore no finding with respect to its disclosure and hence of malice in fact against any of the persons who were aware of its contents can be recorded. Be that as it may, learned counsel for the petitioner also raised issue with Mrs. Firdous Ashiq Awan's press conference on 30.05.2019. He criticised the derogatory manner in which she discussed the Reference against the petitioner and argued that this was irrefutable proof of the respondents' ill-will against the petitioner. We are in agreement with learned counsel that the press conference was in bad taste. Even though, by 30.05.2019 the news about the Reference was already in the public domain, Mrs. Awan used the information for political point scoring. It is not the petitioner's case that she had any role in preparing or framing the Reference. Therefore, her press conference cannot have any consequences vis a vis the Reference. However, even if the poor choice of words used by Mrs. Awan cannot on their own amount to malice in fact, their hostile and scandalous content during the press conference prima facie shows that she was deriding the petitioner (or was at least attempting to). By such conduct she violated not only Rule 13 of the 2005 Rules but also prima facie breached Article 204 of the Constitution by committing contempt against a sitting Judge of the Supreme Court. Consequently, she should be made answerable for her conduct under Article 204(2)(b) of the Constitution through independent proceedings.

62. Learned counsel for the petitioner next objected to the unusual despatch with which the respondents investigated, prepared and filed the Reference against the petitioner. He submitted that the complaint dated 10.04.2019 was received by Chairman ARU on 12.04.2019. Within four days of its receipt, Chairman ARU met the Law Minister who authorised the investigation against the petitioner. In about a month the entire investigation was completed, with 10.05.2019 being the busiest day. Thereafter, in ten days, on 20.05.2019 the President had signed the Reference. Learned counsel submitted that the completion of the investigation and the preparation of the Reference against the petitioner in such a short period of time strongly indicated ulterior motives on the part of the respondents. With respect to the learned counsel, we are unclear as to how this timeline conveys any ill-motives of the respondents in the matter. The information received by Chairman ARU in the PM's Secretariat was not any routine complaint. It was against a sitting Judge of the Supreme Court and thus received prompt attention from the ARU and the concerned officers of the Federal Government. It must also be said that in such sensitive matters, expeditious action is to be preferred so that if the information is baseless it can be filed without delay. Allowing the affair to linger may expose the process to untoward manipulation and may prejudice the institution and the learned Judge under complaint. But even if we disregard the foregoing view, the crucial question is how does departmental alacrity in the finalisation of the Reference demonstrate malice in fact of the respondents. There is no evidence of falsity of the material collected or of misrepresented facts being alleged by the respondents. Their expedition has no doubt resulted in legal errors (which are discussed below). However, this is still no ground for imputing malice in fact against the respondents. Therefore, this allegation of the petitioner is also without merit.

63. Finally, learned counsel for the petitioner took strong objection to the language used by the AG in his written Rejoinder to the petitioner's Preliminary Response filed before the SJC. He stated that this was clear evidence of the AG's hatred for the petitioner. He read out portions from the Rejoinder in Court, some of which are quoted in the petitioner's pleadings. A few of these are reproduced below: "It seems that the Respondent has two mental issues. Firstly, he has a self-persecution phobia; and secondly he considers himself a legend in his own mind, fully bestowed with honesty, integrity and competence and considers the rest of the world as dishonest and incompetent." "the Respondent craves for self-praise and cheap publicity." "the Respondent appears to be drenched in self-praise." We would like to record our disapproval of the language used by the AG for a Judge of the Supreme Court. That being said, the brazen language is not used in the Reference but in the Rejoinder which answers the objections of the petitioner to the Reference. These objections include criticism of the AG's competence which can be found in the Preliminary Response. The AG may have made his harsh remarks about the petitioner in retaliation to the prickly comments made about him. Be that as it may, since the remarks, notwithstanding their indiscretion, were made in the Rejoinder as opposed to in the Reference, these did not form part of the record before the President. As a result, they did not influence the decision of the President to forward the Reference to the SJC for an inquiry. Therefore, being subsequent to the preparation of the Reference and its summary, the AG's remarks cannot be said to reveal malice in fact in the filing of the Reference.

64. Our conclusion about the absence of malice in fact in the filing of the Reference is reaffirmed by the petitioner's admission that the London properties are indeed owned by his wife and children. This is because it is now well-established in other areas of the law that an allegation of malice in fact gets defeated if it is proved that a complaint levelled against a person is true. Accordingly, we hold that the allegations of malice in fact levelled by the petitioner against the respondents fail. CONSTITUTION OF ASSETS RECOVERY UNIT

65. Learned counsel for the petitioner next criticised the collection of evidence coordinated by the ARU for being unknown to the laws of Pakistan. He stated that the ARU finds no mention in the Constitution, any Act of Parliament or even the Rules of Business, 1973 ("ROB"). Instead, he submitted the ARU was created by the issuance of a Notification dated 06.11.2018 which the Government has not published in the Gazette. He contended that the entire functioning/working of the ARU was shrouded in a cloak of secrecy, notwithstanding that it seemed to be vested with unlimited powers that infringed upon the fundamental rights of the people of Pakistan.

66. Conversely, learned counsel for the respondents submitted that the ARU has been legally constituted. To support his contention he relied on two judgments of this Court reported as 2018 SCMR 574 and PLD 2018 SC 686 ("Foreign Currency Accounts Cases"), which he argued provided the impetus for creating the ARU to act as a coordinating agency between the different finance related institutions of the country to exercise oversight on economic matters of public importance. The purpose and object of the ARU, he urged, was to recover unlawful assets abroad which may have been created via funds obtained through money laundering, corruption or tax evasion. He relied on Rule 16(1)(m) of ROB read with the Notifications issued by the Cabinet Division to demonstrate that ARU had been created with the approval of the Federal Government in accordance with law.

67. In our considered view, the Foreign Currency Accounts Cases provide a backdrop for examining the legality of the ARU. These judgments noticed that a staggering amount of US$ 15.23 billion was transferred overseas, in the financial year 2016-2017, from private bank accounts without obtaining any explanation or proof that the remitted funds had been lawfully earned and taxed. Such transfers were in addition to the funds that may have been sent through covert hundi and hawala instruments. The detrimental effect on the national economy of such transfers cannot be exaggerated. These negative effects were also recognised by this Court in the Foreign Currency Accounts Case reported as PLD 2018 SC 686: "5: ...Clearly, both types of outflows have a huge impact on the stability of the foreign exchange reserves of the country and adversely affect the exchange rates of the Pakistani Rupee. Also as a result, the national economy can become vulnerable to pressure due to foreign currency obligations of the State; can suffer undue and disruptive inflation and can drain the exchequer of substantial amounts of tax on account of escaped income and wealth." However, it must be observed here that the judgments in these cases did not specifically state the need for a body like the ARU to be created. The relevant extract from the judgment reported as PLD 2018 SC 686 is produced below: "11: Having said that, it is observed that any measures taken by the Federal Government in the public interest to protect the foreign exchange reserves of the country and to bring the hitherto undeclared foreign assets within the tax net are welcomed by the Court. Nevertheless, there are other deficiencies of the current tax laws and in the regulatory framework for the holding and transfer of foreign exchange that promote the accumulation of undeclared foreign assets and corresponding income. These have been highlighted by the Committee but remain unaddressed by the Federal Government. They require careful attention and deliberation by the concerned authorities. Let the Federal Government, FBR and the State Bank of Pakistan state their respective positions about these matters pointed out by the Committee and indicate if any reform is proposed to correct or remedy the same." (emphasis supplied)

68. It can thus be observed that the Foreign Currency Accounts Cases did not consider or decide the legality of the status of the ARU established vide Notification dated 06.11.2018. At best, these judgments support reform in the tax and regulatory mechanism of foreign currency accounts and enhanced monitoring of foreign exchange transfers from Pakistan. Therefore, to determine the legality of ARU's creation, one has to consider whether the requisite legal actions and procedures for its establishment have been adopted by the person(s) competent and authorised to do so under the law.

69. In this context, learned counsel for the petitioner's primary grievance against the ARU was that no Act of Parliament had created it or conferred powers on it therefore it was void ab initio. However, this argument of the learned counsel appears to misconstrue the scope of Executive power under the Constitution. The nature and ambit of such power has been considered by the Indian Supreme Court in the case of Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab (AIR 1955 SC 549): "14: It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. 15: The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State." (emphasis supplied) Para-14 of the above noted judgment was approved by this Court in Messrs Mustafa Impex, Karachi v. The Government of Pakistan (PLD 2016 SC 808 at para-69).

70. It can be noticed from these rulings that ordinarily executive functions involve the execution of law and policy and the supervision of the general administration of the State. As already stated above, the ARU is a coordinating agency which brings under one umbrella the competent statutory authorities to stem the menace of tax evasion, money laundering and corruption in our country. Accordingly, the ARU is essentially executing the policy of the State to curb financial crimes in the country. It is therefore an executive office, in particular an 'Attached Department' of the Cabinet Division, performing executive functions. Having such status, it does not need the backing of an Act to grant validity to its creation and actions as required by Article 4 of the Constitution. Evidence for this can be found in the ROB: "

2. Definitions.

(1) In these rules, unless there is anything repugnant in the subject or context: .. (ii) "Attached Department" means a Department which has direct relation with a Division and has been declared as such by the Federal Government;"

71. A perusal of Rule 2(1)(ii) makes it clear that for any 'Attached Department' to exist and function, it needs to have a direct relation with a Division and has to be declared by the Federal Government as an 'Attached Department.' The material on record shows that these two essential steps were taken in relation to the creation of ARU. The first of such documents, demonstrating the procedure followed for constituting the ARU as an 'Attached Department,' is the Summary for the Cabinet dated 11.09.2018: "CABINET DIVISION SUBJECT: ASSETS RECOVERY UNIT (ARU) ..

3. In view of the above, and in pursuance of earlier decision of the Cabinet [05.09.2018], the following is submitted for consideration and approval of the Cabinet: .. c. Placement of ARU, under Cabinet Division, to be housed in the Prime Minister's House;" This was followed by the Notification dated 19.09.2018: "CABINET SECRETARIAT CABINET DIVISION .. No. 643(S)/2018-Cab. The Cabinet, in its meetings held on 5th and 13th September, 2018, vide cases No. 546/35/2018 and No. 556/36/2018, decided to establish the Assets Recovery Unit (ARU) under Cabinet Division, to be housed in the Prime Minister's Office, Islamabad." The above Notifications prove that the creation of the ARU as an 'Attached Department' of the Cabinet Division was approved by the Cabinet itself. Article 90 of the Constitution establishes that the Cabinet with the PM as its head is the Federal Government. It reads as follows: "

90. The Federal Government: (1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the chief executive of the Federation." (emphasis supplied) Consequently, it becomes evident that the approval for the creation of the ARU was given by the Federal Government. As a result, the two-fold requirement listed in Rule 2 (1) (ii) of the ROB for the constitution of ARU as an 'Attached Department' has been satisfied in the present case.

72. Be that as it may, learned counsel's main objection against the ARU was its alleged interference with the rights and liabilities of individuals in the absence of any statute granting it such a power. However, the Notification dated 06.11.2018 issued by the Cabinet Division shows that the ARU does not act directly but instead operates through its members who have been borrowed from various statutory bodies of the country. These include: i. The Federal Investigation Agency ("FIA"); ii. The National Accountability Bureau ("NAB"); iii. The FBR; and iv. The State Bank of Pakistan ("SBP") . As a result, the ARU is manned primarily with individuals whose powers and jurisdiction are exercised under a statutory regime. Accordingly, the ARU is simply a coordinating office attached to the Cabinet Division with the main purpose of facilitating the collaborative efforts of the relevant statutory functionaries. It therefore cannot be accused of adversely affecting the rights of any Pakistani citizen without the backing of law. This is made clear by the composition of the ARU and its terms of reference ("TORs") which are also set out in the above noted Notification dated 06.11.2018: "CABINET DIVISION .. NOTIFICATION No. F.32/CM/2018-Cab. The Cabinet, in its meeting held on 5th September, 2018, vide case No.546/35/2018, approved the Establishment of Assets Recovery Unit for implementation of Recovery of Unlawful Assets Abroad.