FULL COURT REFERENCE OF SUPREME COURT OF PAKISTAN HELD ON 30-4-2009, ON THE DEMISE OF MR. JUSTICE SABIHUDDIN AHMED, JUDGE SUPREME COURT OF PAKISTAN.

Addressed by
JUSTICE (RETD.) RASHEED A. RAZVI
President, Sindh High Court Bar Association.

Hon'ble Chief Justice of Pakistan,

Hon'ble Senior Puisne Judge of Supreme Court

Hon'ble Judges of the Supreme Court,

Learned Attorney General of Pakistan,

President, Supreme Court Bar Association,

Advocate Generals of all Provinces.

Learned members of the Bar.

Ladies and Gentlemen:

We have assembled here to mourn the sad demise of a great man, Justice Sabihuddin Ahmad an ideal human being, a great jurist, a complete lawyer and a friend in need. It is a very painful job for me to present my submissions in this full court reference for a man who had remained my friend, my brother judge and my colleague advocate for more than 36 years.

Justice Sabihuddin Ahmed was called by his loved ones simply as "Babar". I affectionately called him "genius". He was born at Hyderabad, Sindh on 27th March 1949 where his father, Mr. Wajihuddin Ahmed, a civil servant of distinction himself was then posted. His great grandfather, Moulvi Ahmed Buksh was the principal of Aitcheson College, Lahore. His grandfather, Maulana Salahuddin set up a publication by the name of "Khyalistan" and became editor and owner of another publication called 'Adabi Duniya'. His Lordship inherited excellence, intelligence and dedication from his forefathers.

Justice Sabihuddin was initially home taught as his father at the relevant time was serving in the tribal area. He only started attending formal school at the age of 12. From his school days he was deeply enchanted by the politics of the left and the values that he then absorbed were to remain with him throughout his life. He obtained his B.A. in 1967 from the University of Sindh,, Jamshoro. In 1969 he passed M.A. in English Literature from the University of Punjab, Lahore and L.L.B. from S.M. Law College Karachi, in the year 1972. His favourite past time after school was to indulge in 'Bait-Bazi' with his friends and siblings. After graduating in law he joined the chambers of Khalid, Rauf, Zahid and Nizam. Late Mr. Khalid M. Ishaq was his maternal uncle. In 1980 he entered in partnership with Mr. Muneer A. Malik that was to last until his elevation as Judge of the Hon'ble High Court of Sindh, in 1997. It was such an understanding that I have rarely found amongst lawyers.

He was a founder member of a number of civil society organizations and was involved in the drafting of the constitution of the Human Rights Commission of Pakistan of which he remained the First Vice Chairman during its formative and consolidating years. He was elected Joint Secretary of the Sindh High Court Bar for the term 1982-1983 but resigned in protest as Gen. Ziaul Haq was invited to attend the Annual dinner of the High Court Bar.

I had known Justice Sabihuddin Ahmed since 1973. At that time there was a crack down on the Labour Movement and several labour leaders of Karachi were behind bars and were involved in false cases including the cases under the Defence of Pakistan Rules. We used to jointly appear for these labour leaders in bail matters and habeas corpus petitions. I have lost count of the number of cases in which we had jointly appeared in such matters and till my elevation to the Bench there must have been hundreds of cases involving violation of fundamental rights, which were brought before this Court.

I do not remember that during this period of 36 years we had any difference of opinion regarding all legal issues or on any political matters except for a brief encounter of dissent when Justice Sabihuddin Ahmed supported re-appointment of some of the Judges in the High Court of Sindh in the month of August, 2008 which was opposed by me as I was of the view that this will amount to endorse the illegal decision of 3rd November, 2007. He was always open to fair criticism and never heard any case with any decided notion.

I had the honour of being part of one of his history making judgment in the case of Mazharuddin (1998 P.Cr.L.J 1035) wherein for the first time in Pakistan, Justice Sabihuddin Ahmed awarded monetary compensation against police officials in the case of illegal detention after referring to more than 56 cases from U.S., Indian, Sri Lankan and other jurisdictions. There may be hundreds of reported cases which were authored by Justice Sabihuddin and many of them deal with very intricate and complicated questions of law which were lucidly dealt with. In this short time it would be very different to dilate upon these cases.

It was Justice Sabihuddin's excellence that the scope of Article 199 of the Constitution was enlarged and extended in the case of Human Rights Commission of Pakistan whereby his Lordship while speaking for the Full Bench of the Hon'ble Supreme Court went up to the extent of opining that under Article 199(1)(c), a petition would be maintainable against any private person for seeking enforcement of fundamental rights. I may quote the relevant portion, which is the first impression of law extending the scope of Article 199 of the Constitution.

"………The jurisdiction of superior Courts to enforce fundamental rights under Article 199(l)(c) of the Constitution is not merely exercisable against persons performing functions in connection with the affairs of the Federation or Province or a local authority but against any person or authority including a Government. Some of the fundamental rights by their very nature may be impaired by private persons and there is no embargo on the powers of the High Court to issue such direction as may be appropriate for enforcement of such rights…….".

My Lords,

Law remained the everlasting love and passion of his life. While he respected judicial precedents he stood for innovation. His approach to law was dynamic and his judgments were trailblazers. He was a prolific writer on the subject of law and his style was as impeccable as his manners and humility. He was fond of both English and Urdu poetry and he knew half of the verses of Faiz Ahmad Faiz by heart. He was a simple man to whom almost every friend turned to when in need of advice on matters personal or worldly. He was always truthful yet never offensive. He was caring, generous and bore no grudge against even his bitterest foe.

He agonized over the most difficult decision of his life— whether or not to take oath under the Oath of Office (Judges) Order 2000. I recall that fateful morning on 26th January 2000 when he along with Justice Anwar Zaheer Jamali came in my Chamber. He and Justice Jamali were not inclined to take oath. It was a joint request made by me, Mr. Muneer A. Malik and Mr. Mushtaq A. Memon that we persuaded both these Hon'ble Judges to remain in the judiciary as they had to perform some other important work. While his heart said no, he was reluctantly persuaded by the argument that he must remain in Judiciary as on the balance there was more virtue then vice even though more opprobrium than cheer. We are proud that this request to him and Justice Jamali stands vindicated at the bar of history.

His Lordship proved his leadership as Chief Justice, Sindh High Court, when in the month of April 2007, some 18 judges of Sindh High Court went to Hyderabad to receive the Hon'ble Chief Justice of Pakistan, who at the relevant time was made non-functional through an unconstitutional and malafide order passed by General Pervez Musharraf. This was a clear defiance of the Judges of the Sindh High Court against the decision dated 09-3-2007. Again on 03rd November 2007, the Sindh High Court created another history under his Lordship leadership when 16 Judges declined to take oath on Provincial Constitution Order, 2007 imposed by General Pervez Musharraf.

Nobody would forget that on 12th May 2007, when the premises of this Hon'ble Court and of the City Courts were surrounded by the armed persons of a political group and when the law enforcement agencies were helpless, the Chief Justice Sabihuddin Ahmed came for the rescue of lawyers and the Civil Society. He summoned and directed the Inspector General of Police to provide protection to the lawyers of Karachi Bar Association and at the same time directed him to remove all barriers and containers placed around the High Court premises. It was under the orders of His Lordship that this Hon'ble Court took suo moto action regarding the lawlessness committed on 12th May 2007 resulting into death of more than 50 innocent persons and injuring hundreds of people. I pray that Almighty Allah may grant such courage and strength to all Chief Justices of the Superior Courts as that of Justice Sabihuddin.

It is often said that Judges should speak through Judgments but my late friend spoke not only through his Judgments but through his acts and deeds. His Lordship was a judge, a jurist, a friend, a fighter for the rule of law and independence of judiciary in a real sense.

Justice Sabihuddin is survived by his wife, one daughter Sana Ahmed and two sons besides thousands of his friends and well wishers. His eldest son Mr. Salahuddin Ahmed is a lawyer and member of High Court Bar Association and was part of the Lawyers Movement for restoration of independent judiciary and the rule of law. I pray that Almighty Allah may shower His choicest blessings on the departed soul and may give his family, friends and legal community enough strength and courage to bear this irreparable loss.