ISLAMABAD: In an unprecedented happening of events, the chief justice of the Islamabad High Court (IHC), Wednesday, expressed reservation over uploading of “opinion of two judges” on the IHC website regarding the disqualification of Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan for concealing his alleged daughter Tyrian White and issued directions to reconstitute the bench for rehearing of this petition.

Justice Mohsin Akhtar Kayani and Justice Arbab Muhammad Tahir, members of a three-judge bench headed by Chief Justice Aamer Farooq, on Wednesday, released their verdict rejecting the petition seeking Imran Khan’s disqualification in the Tyrian White case. However, the judgment uploaded on the IHC website was deleted soon.

A larger bench of the IHC comprising Chief Justice Aamer Farooq, Justice Mohsin Akhtar Kayani, and Justice Arbab Tahir on 30th March after hearing the arguments had reserved the judgment.

Sajid Mahmood had filed a petition in the IHC claiming that although Imran made arrangements for Tyrian White’s upkeep abroad, he did not disclose it in nomination papers and affidavits filed by him for elections.

After the issuance of the verdict by the two judges, the IHC’s spokesperson issued a press release, which stated; “It is clarified for information that Writ Petition No.3061/ 2022 (Muhammad Said Vs Imran Ahmed Khan Niazi) was reserved on 30.03.2023 and “Today (Wednesday), without the announcement of judgment or issuance of cause list for announcement or otherwise intimation to parties and their counsel and without sign of third Member (Chief Justice), the opinion of two judges was uploaded along with office notes, which does not constitute judgment of the Court and is against the rules and the norms.”

It added that the IHC chief justice has reconstituted the bench for rehearing of the case and “Action is also being taken against those responsible for uploading the opinion without issuance of cause list.”

The judgment authored by Justice Kayani stated; “I had the privilege and benefit of going through the order authored by the chief justice. However, with utmost humility and respect, I have not been able to persuade myself to the findings.”

He wrote that in the absence of a marriage contract between the respondent (Khan) and the mother of Tyrian Jade Khan White, assuming her as his child has far-reaching consequences. “Furthermore, the order of this Court cannot be based on mere presumptions. The conclusive determination of the question of paternity and legitimacy would require undertaking factual inquiries by presuming the commission of an offence and as a result, birth of an illegitimate child,” added the judge.

He maintained, “In absence of admission by the respondent No.1, Tyrian Jade Khan White or her (late) mother, no one else has the right to allege illegitimacy. We are living in an extremely polarized society by allowing such practice we would be opening floodgates and permitting everyone to question the legitimacy of children of others.

What if tomorrow persons start approaching this Court seeking declarations that a person residing in a foreign country is the illegitimate child of anyone living in Pakistan and what if questions are raised with regard to a legitimate child by a stranger that such a child, born during subsistence of the wedlock, was not from a legally married husband of a woman, but due to her extramarital affairs.”

The judge questioned that should we start conducting involuntary DNA tests in every such petition believing the assertions as true by intruding the liberty and privacy of people? Should we promote negative practices and instead of uplifting civilization and moral standards, contribute to degeneration of the society? The answer is a big “NO”.

Justice Kayani said that this Court is a guardian of the fundamental rights of the citizens and cannot open the door to their violation. It is the “admitted relationship” between Tyrian Jade Khan White with Respondent No 1 that would determine the question of her dependency, which is not the case in hand.

He further said that furthermore, the petitioner can file an application for initiation of proceedings under Article 204 of the Constitution read with the Contempt of Court Ordinance, 2003. The Elections Act, 2017 provides extensive mechanism to deal with infirmities/ deficiencies in the nomination papers under Sections 60, 62 and 63 thereof.

The IHC judge noted, “The option of the petitioner, not to approach competent forums in due course of time before the competent forums provided under the law and instead invoking the extraordinary jurisdiction vested in this Court under Article 199(1) (b) (ii) of the Constitution raises questions as to his bonafides.”

“Through the petition in hand, the petitioner has indirectly intruded upon the privacy of persons and tried to promote negative culture on baseless allegations. The petitioner has raised the question of disqualification without there being any conviction for moral turpitude awarded by a competent court,” added Justice Kayani.

He continued that the petitioner, through the instant “false and vexatious petition” has attempted to re-agitate the questions which were already adjudicated by this Court. The conduct of the petitioner and the filing of this petition appear to be for extraneous considerations. The petitioner based the instant petition on baseless and unfounded false allegations.

He further said that the petition could have been dismissed at the first instance, especially in the light of previous findings of this Court in WP No3069/2018 titled “Hafiz Ihtesham Ahmed Vs. Federation through Federal Secretary, etc.” and Election Appeal No.05/2018 titled “Imran Ahmed Khan Niazi Vs. Returning Officer, Constituency NA-53, Islamabad) under the doctrine of resjudicata and collateral estoppel.

He concluded, “The nutshell of the above discussion is that instant writ petition is not maintainable from the very inception, the same is hereby dismissed.”

Copyright Business Recorder, 2023

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