The Supreme Court on Saturday returned a civil miscellaneous application of National Accountability Bureau (NAB) chairman Admiral Fasih Bokhari (Retd) which he filed in a contempt of court case against him. Naveed Rasool Mirza, the counsel for the Chairman NAB filed a three-page application to which apex court Registrar raised certain objections, saying that derogatory language had been used against judges in that plea.
The Supreme Court had issued a show-cause notice to NAB chairman on January 31 over his January 27 letter to President Asif Ali Zardari in which he had accused the apex court of interfering in the top anti-graft body's investigations. Mirza contended: "According to Section 11(3) of the Contempt of Court Ordinance contempt proceedings initiated by a judge shall not be heard by the same judge".
He pleaded that paragraph 8 (ii) of the contempt order against his client carried an air of conclusiveness and finality of opinion. "Needless to say that the test of bias is the real likelihood of prejudice not requiring certainty, real likelihood being the apprehension of reasonable man that he would not be treated fairly," according to him. "It would, therefore, be in the fitness of things that the matter in question is heard by another Hon'ble Bench of this Hon'ble Court," Mirza added.
He argued that the letter under scrutiny by the court was in fact a confidential communication /report made by his client as the administrative head of the NAB, on his personal letter head, to his appointing authority the President of Pakistan to whom his client also owed a statutory responsibility of submitting an annual report. Mirza contended that his client communication/letter fell within the category of a protected statement as envisaged by Section 16 of the Contempt of Court Ordinance 2003 saying the Bench had not adverted to the crucial legal position before issuing contempt notice to his client.
He alleged that the situation furthered the chairman NAB's apprehension that the Bench stood already prejudiced and predisposed towards his client. Praying the court, Mirza said that the Chief Justice of Pakistan "may not like to sit" on the bench to hear the contempt matter against his client and recalled, "somewhere in the middle of last year ie 2012, the Respondent (Bokhari) was informed by Barrister Aitzaz Ahsan that the Chief Justice wished to have one Raja Amir Abbas, Advocate appointed/ inducted in the legal branch of the NAB".
He further said, "the respondent (Bokhari) was not able to accommodate this wish because of adverse opinion on record in the Bureau against Raja Amir Abbas - Bukhari believes that Raja Amir Abbas' inability to accede to the Chief Justices' desire has irked the Chief Justice giving rise to a distinctive predisposition against Bukhari." Recalling the issue between Arsalan Iftikhar, son of the Chief Justice and Malik Riaz Hussain of Bahria Town, the counsel for chairman NAB alleged that Arsalan was harshly and unrelentingly critical of Bukhari, adding that Arsalan Iftikhar served a notice to his client accusing him of having close relations and family terms with Malik Riaz Hussain.
He said his client was also blamed for maintaining close relationship with Malik Riaz Hussain "both on a personal level as well as in financial terms". "It was suggested by Mr Arsalan Iftikhar that it would not be appropriate for the Chairman NAB to undertake any investigation in that case - Later in C.R.P No 167/2012 filed by Arsalan Iftikhar in suo-motu case No 5 of 2012, he repeated his insinuations against Bokhari and went as far as calling him 'a person of suspect past'", Mirza pleaded.
He further alleged, "Arsalan Iftikhar's relationship with the Chief Justice raises a very reasonable and strong apprehension in the Chairman NAB's mind that the opinion, rancour and the hostility carried by Arsalan Iftikhar, against him will go to influence the father, the Chief Justice's mind, against the Respondent".
Mirza prayed the court that his client was entitled to a fair trial and due process. The Counsel for Chairman NAB prayed, "That in the circumstances and in view of the legal and factual position as explained above, it is respectfully submitted that the matter pertaining to the notice under Article 204 of Constitution read with Section 3 of the Contempt of Court Ordinance issued by the Supreme Court to the Respondent may very graciously be placed before another Bench of the apex court for further proceedings".