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Address by Honourable Mr. Justice Mian Saqib Nisar Chief Justice of Pakistan at full Court Reference on the Retirement of Mr. Justice Ejaz Afzal Khan Judge Supreme Court of Pakistan

Islamabad, May 07, 2018 (PPI-OT): My Brother Judges;

Mr. Ashtar Ausaf Ali, Attorney General for Pakistan;

Mr. Kamran Murtaza, Vice Chairman, Pakistan Bar Council;

Mr. Syed Kalim Ahmad Khurshid, President, Supreme Court Bar Association;

Members of the Bar;

Ladies and Gentlemen;

Assalam-o-Alaikum!

Today we have assembled here to bid farewell, to a dear friend and distinguished colleague; Justice Ejaz Afzal Khan. Born on the 8th of May, 1953 in Mansehra, Justice Ejaz Afzal received his basic education in Mansehra and after completing his FA from the Government College, Mansehra, he graduated from Abbottabad and thereafter he graduated in Law in 1977 from the Khyber Law College. Immediately after, he joined the legal profession. His elevation to the Bench as Additional Judge in September, 2000 was an acknowledgment of his professional capabilities and after having served as a Judge of the Peshawar High Court for 9 years, he was appointed as Chief Justice on 20th of October, 2009 and on 17th November, 2011 appointed as a Judge of the Supreme Court of Pakistan.

Many who know Justice Ejaz, are aware of the wealth of knowledge he has, not only in law, but in philosophy, theology, Islam, history, both English and Urdu literature, etc. His legal expertise is not limited to any one area of law but ranges from constitutional law to civil service law, contract law, corporate commercial law, land law, and so on; he has delivered some land mark judgments that will remain as guidelines for years to come. One of the things which I most admire about Justice Ejaz is his passion for reading and his quest to educate himself further.

Justice Ejaz Afzal has delivered some remarkable judgments which will be remembered for years to come. My brother Judge, though he is blessed with a multitude of fine qualities, has never displayed arrogance or pride. Whenever I have sat on a bench with him I have been impressed with his quiet humility, his calm demeanour and his unfailing courtesy towards all who appear in his court. He has a very firm sense of his duty to his country. In this world, there are very few who have the courage to stand for what they believe is right, and even fewer can do so in the face of fierce opposition with the grace and resolve that Justice Ejaz Afzal Khan has displayed on so many occasions.

It is always in the toughest times that the fabric of our being is truly tested. As a Judge of the Superior Courts, Justice Ejaz even in the most trying times has made it his priority to deliver Justice.

Justice Ejaz Afzal not only headed Benches but also remained a member of the larger Benches which heard cases of constitutional importance. Throughout his judicial career, he has always been an advocate of fairness and equity. He never allowed technicalities to create hurdles in the way of justice or to defeat the ends of justice.

While considering the maintainability of second writ petition on the ground of laches[1], he held that: “… ground of laches is not one of the universal application as could be applied in every case without examining the dictates of equity, justice and fair play and circumstances of the case. Nor could it be treated at par with the Law of Limitation prescribing period for enforcing a right or liability and requiring the Court to dismiss a lis if not filed within such period. No Court would dismiss a list on the ground of laches if it defeats the cause of justice and thereby perpetuates an injustice.”

Besides, strict adherence to the law has also been the underlying emphasis in his judgments. While considering the question of evasion of stamp duty[2], he observed that: “… where possession is not given or agreed to be given, the stamp-duty shall be charged on the amount secured by such deed as is provided by Article 15 of the First Schedule of Stamp Act. The question thus arises whether possession in this case has been given to the mortgagee.

The answer to the question is an emphatic no as the words used in Clause 4(vii) of the agreement that “the mortgagor shall not without the prior written consent of the lender part with possession of the mortgage property” unmistakably show that possession has not been given to the lender. … It, therefore, follows that the case of the appellant is covered by Article 15 and not Article 40(a) of the First Schedule of the Stamp Act. It thus has to be charged accordingly.” However, in the circumstances of the case, five times penalty, being too harsh, was reduced to two times the deficient portion of the duty, being sufficient to meet the ends of justice.

It is a cardinal principal of statutory interpretation that while interpreting any provision of law the judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. Justice Ejaz remained a true proponent of the said principal which is evident from the judgments he delivered.

One such instance is the judgment in the case of employees of National Command Authority[3], wherein while considering the question whether the Rules framed under Section 15 of the National Command Authority Act, 2010 are statutory or otherwise, he, using, the dynamic approach, observed that “The Rules framed under Sections 7, 9 and 15 of the Act are of that genus or genera as they are not only broader in their area of efficacy but are also complementary to the parent statute in the matters of crucial importance. Yes, these Rules have not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory.” It was thus held that “the Rules so enacted and approved by the Authority with such personages on the board do not require another approval of yet another personage.”

Likewise, while considering the question whether or not the exercise of powers under Section 22-A (6) of the Criminal Procedure Code by the Ex-officio Justice of Peace are violative of the provisions of Article 175(3) of the Constitution[4], he observed that “The functions, the Ex-officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions … are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every list before him demands discretion and judgment. Functions so performed cannot be termed as executive, administrative or ministerial on any account.”

Ladies and gentlemen!

The Islamic Republic of Pakistan was built by brave hearts, and it is the bravery of hearts indeed that will take this Nation to newer horizons. Justice Ejaz Afzal is one such brave heart, and we today celebrate his being, his contributions and bid farewell to his presence in the Supreme Court, which will remember him for times to come for his words, his wisdom and his zeal.

In the end I want to say that retirement is the end of one chapter and the beginning of the next. We all pray to Allah Almighty that the next chapter of your life may be as virtuous and honourable as the one now coming to a close. My brother judges and I will miss you on the bench. With these words I conclude my address.

Pakistan Paindabad.

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