2025 SCLR 35 (Judgment in Minority)

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Naeem Akhter Afghan, Shahid Bilal Hassan, Salahuddin Panhwar and Shakeel Ahmad, JJ

Justice Mohsin Akhtar Kayani and others — Petitioners

versus

The President of Pakistan, Pak Secretariat, Islamabad and others — Respondents

Constitution Petitions No. 22, 20, 25 to 28 & 30 of 2025 and C.M.A.2136/2025 IN C.P.22/2025 and C.M.A.2137/2025 IN C.P.20/2025 and C.M.A.2138/2025 IN C.P.26/2025 and C.M.A.2139/2025 IN C.P.27/2025 and C.M.A.2047/2025 IN C.P.28/2025 (Stay applications), decided on 03rd October, 2025.

(Constitutional Petitions U/A 184(3) of the Constitution for declaring Notification No. F.10 (2)/2024-A.II dated 1st February 2025 regarding Transfer of Judges to Islamabad High Court as Illegal and Unconstitutional)

Muneer A. Malik, Senior Advocate Supreme Court, Salahuddin Ahmed, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (In CP 22/25) assisted by Ms. Zainab Janjua and Ms. Faaiza Qazi, Advocates for the petitioners.

Idrees Ashraf Malik, Advocate Supreme Court and Raja Muqsit Nawaz Khan, ASC (in CPs 20 & 25/25) for the petitioners.

Hamid Khan, Senior Advocate Supreme Court and Waqar Rana, Advocate Supreme Court and Ajmal Ghaffar Toor, Advocate Supreme Court (in CPs 26 & 27/25) for the petitioners.

Faisal Siddiqi, Advocate Supreme Court, Riasat Ali Azad, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record assisted by M. Ammar Rafique and Sikandar Naeem Qazi, Advocate (in CPs 28 & 30/25) for the petitioners.

Mansoor Usman Awan, AGP, Ch. Aamir Rehman, Addl. AGP, Raja Shafqat Mehmood Abbasi, DAG for the Federation.

Muhammad Amir Malik, Advocate-on-Record assisted by: Hasan Mehmood, Legislative Advisor, M/O Law, Ms. Mariyam Ali Abbasi and Saad Javed Satti, Advocates for President of Pakistan, Registrar SCP and Secretary JCP.

Muhammad Amjad Pervaiz, AG, Waseem Mumtaz Malik, Addl. AG, Rao Muhammad Aurangzeb, Asstt. AG assisted by: Muhammad Adil Chattha, Sr.Consultant for the Province of Punjab.

Suresh Kumar, Addl. AG, Sibtain Mehmood, Addl. AG and Barrister Zeeshan Adhi, Addl. AG, Shah Faisal Ilyas, Addl. AG for the Province of Sindh.

Shah Faisal Ilyas, Addl. AG for the Province of KPK.

Muhammad Ayaz Swati, Addl. AG and Tahir Iqbal Khattak, Addl. AG for the Province of Balochistan.

Ayyaz Shaukat, AG and Dr. Mirza Muhammad Usman, Advocate-on-Record for ICT.

M. Shahid Latif Khan, Dy. Registrar for the Registrar LHC.

Wajid Ali Khan, Director (Regulations) (via video link from Peshawar) for the Registrar PHC.

Sohail Muhammad Laghari, Registrar (via video link from Karachi) for the Registrar SHC.

M. Asif Iqbal, Dy. Registrar for the Registrar IHC.

Nemo for the Transferee Judges.

Dates of hearing:    14th, 17th, 22nd, 29th, 30th April; 07th, 08th, 14th, 15th, 19th, 20th, 21st, 23rd, 26th, 27th, 29th May and 16th June to 19th June, 2025.

Index:

I.        Preamble

II.        Relevant Facts:

III.        Locus Standi of the Petitioners:

IV.        Unnecessary Haste:

V.        Malice in Facts and Malice in Law:

VI.        Interpretation of Clause (1) of Article 200 of the Constitution

VII.        Effects of the Impugned Notification

VIII.        Fresh Oath and Seniority

JUDGMENT

Naeem Akhter Afghan, J.

I.    Preamble

    All these Constitutional Petitions (CPs) have been filed by the petitioners to challenge the Notification dated 1st February 2025 (the impugned notification) issued by the Government of Pakistan (GoP), Ministry of Law and Justice (MoLJ) which reads as follows:

“Government of Pakistan

Ministry of Law and Justice

*****

Islamabad, the 1st February, 2025

NOTIFICATION

No.F.10(2)/2024-A.II.- In exercise of the powers conferred under clause (1) of Article 200 of the Constitution of the Islamic Republic of Pakistan, the President of the Islamic Republic of Pakistan is pleased to transfer:

(i)    Mr. Justice Sardar Muhammad Sarfraz Dogar, Judge, Lahore High Court from Lahore High Court to Islamabad High Court;

(ii)    Mr. Justice Khadim Hussain Soomoro, Judge, High Court of Sindh from High Court of Sindh to Islamabad High Court; and

(iii)    Mr. Justice Muhammad Asif, Judge, High Court of Balochistan from High Court of Balochistan to Islamabad High Court.

2.        Our learned brother Judges, Muhammad Ali Mazhar, Shahid Bilal Hassan, and Salahuddin Panhwar JJ. had disposed of all the CPs and Miscellaneous Applications vide short order dated 19th June 2025 by declaring the impugned notification intra vires the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) and without upsetting the impugned notification, the matter was partially remanded by them to the President of the Islamic Republic of Pakistan (the President) for determining seniority of the Transferee Judges after examining/vetting their service record including the question as to whether their transfer is on permanent or temporary basis.

3.        While respectfully disagreeing with the majority short order, we (Naeem Akhter Afghan, J. and Shakeel Ahmed, J.) had allowed all the CPs vide our short order dated 19th June 2025 which reads as follows: –

        “For the reasons to be recorded later on, all the Constitution Petitions are accepted. The impugned Notification No.F.10(2)/2024-A.II dated 1st February 2025 issued by the Secretary, Ministry of Law and Justice, Government of Pakistan, whereby in exercise of powers conferred by Clause (1) of Article 200 of the Constitution of Islamic Republic of Pakistan, 1973 (The Constitution), the President of the Islamic Republic of Pakistan (The President) has transferred Mr. Justice Sardar Muhammad Sarfraz Dogar, Judge, Lahore High Court (LHC), Mr. Justice Khadim Hussain Soomro, Judge, High Court of Sindh (SHC) and Mr. Justice Muhammad Asif, Additional Judge, High Court of Balochistan (BHC) to Islamabad High Court (IHC), is declared null, void and of no legal effect on the following amongst other grounds:

1.     Clause (2) of Article 200 of the Constitution is subservient to Clause (1) of Article 200 of the Constitution and both are interconnected;

2.    According to the Doctrine of Harmonious Construction, while interpreting Clause (1) and Clause (2) of Article 200 of the Constitution, both the clauses have to be harmonized and, being consistent with each other, have to be read in conjunction with each other for giving effect to both without creating conflict or absurdity;

3.    When Clause (1) and Clause (2) of Article 200 of the Constitution are read in conjunction with each other, it provide that when, in exercise of his discretion, the President transfers a Judge of a High Court from one High Court to another High Court, during the period for which he serves as a Judge of the High Court to which he is transferred, the Judge so transferred is entitled to such allowances and privileges, in addition to his salary, as determined by the President;

(Emphasis laid)

4.    During arguments, the learned Attorney General for Pakistan conceded and categorically conveyed to the Court on behalf of the Federation of Pakistan that the three Judges have been transferred by the President to the IHC vide impugned notification on permanent basis. Clause (1) and Clause (2) of Article 200, read in conjunction with each other, do not provide for permanent transfer of a Judge of a High Court from one High Court to another High Court and it provide for transfer of a Judge of a High Court from one High Court to another High Court for a period i.e. on temporary basis;

(Emphasis laid)

5.    The permanent transfer of three Judges to IHC has been made by the President in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution.

6.    It has offended Article 175A of the Constitution and has made the same redundant;

7.    The process for permanent transfer of three Judges to IHC is suffering from concealment of relevant and material facts from the transferee Judges, from the Chief Justices of the IHC, LHC, SHC, BHC and from the Hon’ble Chief Justice of Pakistan (CJP);

8.    The process for permanent transfer of three Judges to IHC is also lacking meaningful, purposive and consensus oriented consultation with the Chief Justices of IHC, LHC, SHC, BHC and Hon’ble CJP on all the relevant issues;

9.    The process for permanent transfer of three Judges to IHC has been completed in an unnecessary haste;

10.    It is suffering from mala fide in facts as well as mala fide in law;

11.    It has not been made by the President in the public interest;

12.    While transferring the three Judges to IHC on permanent basis, the President has failed to apply his independent mind with objective opinion;

13.    The object of proportionate representation of all the Provinces in IHC could have conveniently been achieved by making fresh appointment of Judges from the Provinces by the Judicial Commission of Pakistan (JCP) under Article 175A of the Constitution as Rule 6 of the Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024 binds/mandates the Members of the JCP to ensure proper diversity in terms of region as well as gender and religion, subject to the prescribed criteria;

14.    It is violative of Article 2A, Article 4 and Article 25 of the Constitution and it has undermined the independence of judiciary, due process and principle of equality;

15.    The permanent transfer of three Judges to IHC from LHC, SHC and BHC by the President has caused ripple in the comity of Judges.

16.    According to the settled principles, if a case can be decided on other or narrower grounds, the court will abstain from deciding a larger constitutional question than is necessary for the determination of the case1. Since it has already been held that the permanent transfer of three Judges to IHC from LHC, SHC and BHC cannot be made by the President in exercise of powers under Clause (1) read with Clause (2) of Article 200 of the Constitution, therefore there is no need to dilate upon the issues of taking fresh Oath by the transferee Judges or their seniority. The said issues will be dilated upon/dealt with in an appropriate case;

17.    Learned counsel for the petitioners contended that six sitting Judges of IHC wrote letter dated 25th March, 2024 to the then Hon’ble CJP/Chairman JCP, Senior Puisne Judge, Supreme Court of Pakistan/Member JCP and three other Members of JCP with complaints of interference in judicial functions and/or intimidation of Judges of IHC by the Intelligence Agencies/operatives of the Inter-Services Intelligence (ISI); the issue was taken up in full court meeting of the Supreme Court as well as on the judicial side and it had triggered the process for transfer of three Judges to IHC from LHC, SHC and BHC.

            The above contention raised by learned counsel for the petitioners cannot be believed as the Intelligence Agencies, including ISI, have no role under the Constitution for appointment or transfer of Judges. Being subordinate to the Executive, the Intelligence Agencies, including ISI, cannot override the Executive, the Judiciary, the Constitutional bodies and the Constitutional office holders. If, for the sake of argument, the contention of learned counsel for the petitioners is believed, it portrays:

4.        While respectfully disagreeing with the reasons offered by our learned brother Judges in their majority judgment dated 18th September 2025 and the concurring separate note of our learned brother Judge Salahuddin Panhwar, J., we are furnishing the following reasons for our short order dated 19th June 2025:

II.    Relevant Facts:

5.        Islamabad High Court (IHC) was originally established in pursuance of Islamabad High Court (Establishment) Order, 2007/President’s Order No.7 of 2007 dated 14th August 2007. It ceased to exist on 31st July 2009 by a decision of this Court in the case of Sindh High Court Bar Association v Federation of Pakistan2. IHC was reestablished by the Islamabad High Court Act, 2010 (IHC Act of 2010) following the 18th Amendment3 to the Constitution.

6.        According to sub-section (1) of section 3 of the IHC Act of 2010, IHC shall consist of a Chief Justice and nine other Judges to be appointed from the Provinces and other territories of Pakistan, in accordance with the Constitution. The IHC Act of 2010 was further amended by the Islamabad High Court (Amendment) Act, 2024 (IHC Amended Act of 2024) whereby in sub-section (1) of section 3 the number of Judges of IHC was increased from nine to twelve. According to IHC Amended Act of 2024, IHC shall consist of a Chief Justice and twelve Judges. At that time the composition of IHC, with seniority of Judges, was as follows:

7.        On 10th May 2023 six Judges of IHC namely Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir and Saman Rafat Imtiaz JJ. wrote letter to the then Chief Justice (CJ) IHC (Aamer Farooq, J.) contents whereof read as follows:

“Dear Sir:

We bring to your attention with anguish and concern the following events that have transpired during the hearing of cases with political ramifications.

1.    Justice Tariq Mehmood Jahangiri was approached directly as well as through relatives and friends. He was requested for a meeting by Sector Commander Islamabad and a relative of Justice Jahangiri was pressurized by Sector Commander Quetta to facilitate a meeting between Justice Jahangiri and Director General (Internal) of ISI. Messages were also sent to him in an attempt to influence the outcome of judicial proceedings pending before a bench that he was a part of.

2.    Efforts have been made to bring pressure to bear upon Justice Mohsin Akhtar Kayani through his relatives in an attempt to influence the outcome of cases pending before benches that he was part of. Implicit threats were made regarding initiation of proceedings through exercise of power by the executive in the event that Justice Kayani remained unhelpful and inaccessible.

3.    Pressure was brought to bear upon Justice Arbab Muhammad Tahir through his relatives. On his visit to Quetta he was informed by family that ISI was probing into his tax matters in an attempt to find vulnerabilities. Sector Commander Islamabad and Director General (Internal) ISI also reached out in an effort, to seek a certain outcome in a judicial matter pending before a bench that he was a part of, in which the judgment had already been authored.

            We are of the opinion that the interference of the executive and/or Intelligence agencies within the domain of Judiciary in general and efforts to influence the outcome of judicial proceedings in sub judice matters as well as where judgments have been authored and signed but not yet released coupled with intimidation and threats of dire consequences is as blatant a contempt of court as there can be. We would therefore recommend that appropriate proceedings be initiated under Article 204 of the Constitution read with provisions of the Contempt of Court Ordinance, 2003, to ensure that public faith in the ability of Islamabad High Court to dispense justice without considerations of fear and favour is preserved and protected, and Judges of the Court are able to discharge the functions of their office in accordance with oath that they have sworn under the Constitution to uphold the rule of law and decide cases with an independent mind in accordance with their conscience on the basis of merits of each case.”

8.        On 12th February 2024 another letter was written to the then CJ IHC by five Judges of IHC namely Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir, and Saman Rafat Imtiaz JJ. requesting therein to convene a Full Court Meeting at the earliest to discuss how best to resuscitate the institutional processes enabling them to collectively administer IHC in accordance with law and the Constitution and to address the issues of supervision of District Judiciary of Islamabad Capital Territory (ICT), autonomy and independence of the District Judiciary of ICT, interference of intelligence agencies in judicial work of District Judiciary of ICT, lack of financial integrity of some members of the District Judiciary of ICT, lingering on of some trials for years and conclusion of some trials, involving political persons, with an alacrity drawing criticism not just from the media but even from fair minded members of the legal fraternity, bench formations and fixation of cases in IHC and collective decision making for administrative responsibilities by the Administrative Committee and Full Court Meeting of all Judges of IHC. With regard to the issue of Independence and Integrity of IHC it was mentioned as follows in para-4 of the said letter:

“The direct and indirect interference of intelligence agencies in the working of IHC has continued. You are aware of the various incidents where coercion and/or threat of coercion has been brought to bear on Judges. In addition, at least two references have been filed against a Judge, accompanied by highly defamatory press conferences held by state functionaries scandalizing the judge, to bring pressure upon him to resign. There have been incidents of illegal surveillance of judges that has violated their privacy in the most abhorrent fashion. After each incident you have reassured us that such illegal interference designed to influence the discharge of judicial functions at IHC will stop. But it hasn’t. Similarly, incidents of citizens being disappeared from ICT’s jurisdiction, which had been effectively curbed during Chief Justice Athar Minallah’s tenure, have reared their ugly head again. As the machinery for enforcement of fundamental rights, IHC must establish that such defiance of the Constitution will not be tolerated.”

9.        On 25th March 2024, six Judges of IHC namely Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir and Saman Rafat Imtiaz JJ. wrote letter to the then Chief Justice of Pakistan (CJP)/Chairman Supreme Judicial Council (SJC) and members of SJC with complaints of interference in discharge of the official functions of the Judges of IHC and District Judiciary of ICT, intimidation of Judges, attempts to engineer judicial outcomes in politically consequential matters by threats of coercion or blackmailing by the intelligence agencies/operatives of the ISI. The following request was made in the said letter:

“We, therefore, request that a judicial convention be called to consider the matter of interference of intelligence operatives with judicial functions and/or intimidation of judges in a manner that undermines independence of the judiciary. Such convention might provide further information as to whether judges of other High Courts have had experiences similar to those narrated above. Such institutional consultation might then assist the Supreme Court to consider how best to protect independence of the judiciary, put in place a mechanism to affix liability for those who undermine such independence and clarify for the benefit of individual judges the course of action they must take when they find themselves at the receiving end of interference and/or intimidation by members of the executive.”

10.        Considering the gravity of the allegations leveled in the above letter, it was immediately and seriously responded by the then CJP/Chairman JCP which is evident from the following press release dated 28th March 2024 issued by the Public Relations Officer of the Supreme Court of Pakistan (SC):

“PRESS RELEASE

        The Chief Justice of Pakistan (CJP) received a letter dated 25 March 2024 from six judges of the Islamabad High Court on 26 March 2024. Considering the gravity of the allegations levelled in the said letter, the CJP called a meeting on the same day with the Chief Justice and all the Judges of the Islamabad High Court after Iftar at 8 pm at the CJP’s residence. The concerns of all the Judges were heard individually in a meeting that lasted for over 2 and a half hours.

The following day, 27 March 2024, the CJP met with the Attorney-General and the Law Minister, and thereafter the CJP along with the Senior Puisne Judge met with the President of the Supreme Court Bar Association and the senior most member of the Pakistan Bar Council present in Islamabad. A Full Court Meeting of all the Judges of the Supreme Court of Pakistan was called under the chairmanship of the CJP at 4 pm the same day. The Full Court deliberated over the issues raised in the letter sent by the six Judges of the Islamabad High Court. A consensus was developed amongst the majority of the members of the Full Court that in view of the gravity of the situation, the CJP may hold a meeting with the Prime Minister of Pakistan on the issues raised in the said letter and the meeting was adjourned.

The Prime Minister, accompanied by the Law Minister and Attorney-General, met with the CJP, Senior Puisne Judge and Registrar of the Supreme Court at the Supreme Court at 2 pm today, 28 March 2024. The meeting lasted for about an hour and a half. The CJP clearly stated that interference by the Executive in the affairs and judicial workings of Judges will not be tolerated and under no circumstances can independence of the judiciary be allowed to be compromised. He and the Senior Puisne Judge stated that independence of judiciary is a foundational pillar that upholds the rule of law and a strong democracy.

During the meeting a proposal was made to constitute an Inquiry Commission under the Pakistan Commissions of Inquiry Act, 2017 which should be headed by a retired Judge of impeccable integrity to inquire into the matter. The Prime Minister undertook that a meeting of the Federal Cabinet will be called to seek their approval for the constitution of the said Commission. The Prime Minister fully endorsed the views expressed by the CJP and Senior Puisne Judge and further assured them that he will be taking other appropriate measures to ensure an independent judiciary, including issuance of directions to the relevant departments, and initiating legislation in accordance with paragraph 53 of Suo Moto No. 7/2017 (the Faizabad Dharna judgment). Thereafter, in continuation of the last meeting, the CJP again called a Full Court meeting and briefed the Judges on what had transpired at the meeting with the Prime Minister.”

11.        In pursuance of above, meeting of the Federal Cabinet was convened on 30th March 2024. The Federal Cabinet approved for appointment of Tasadduq Hussain Jillani, former CJP to head the One-man Inquiry Commission to inquire into the allegations leveled by the six Judges of IHC in their letter dated 25th March 2024. However, he recused to head the Commission/proceed with the inquiry vide letter dated 1st April 2024 addressed to the Prime Minster of Pakistan (PM) on the following grounds:

        “I have gone through the afore-stated letter of the six judges and the terms of reference approved by the Cabinet as well as the relevant constitutional provision (Article 209). Since the letter is addressed to the members of Supreme Judicial Council and its chairman the Chief Justice of Pakistan, it would be violative of judicial propriety for me to inquire into a matter which may fall within the jurisdiction of a constitutional body which is the Supreme Judicial Council or the Supreme Court of Pakistan itself.

I am also of the view that the terms of the reference for inquiry are strictly not germane to the subject matter of the letter dated 25-03-2024 wherein the 6 honorable Judges inter alia said that;

“We are writing to seek guidance from the Supreme Judicial Council (“SJC”) with regard to the duty of a judge to report and respond to actions on part of members of the executive, including operatives of intelligence agencies, that seek to interfere with discharge of his/her official functions and qualify as intimidation, as well as the duty to report any such actions that come to his/her attention in relation to colleagues and/or members of the courts that the High Court supervises.”

Towards the end the request made in the letter is for an “institutional consultation” in terms of the mechanism suggested in the said letter.

Though, the letter in question may not strictly fall within the parameters of Article 209 of the Constitution, but the Honorable Chief Justice of Pakistan being a paterfamilias may address and resolve the issues raised in the letter at the institutional level.“

12.        In view of seriousness of the matter, on 1st April 2024, the then CJP proposed that the SC may judicially consider the matter under Article 184(3) of the Constitution. The proposal of the then CJP was accepted by the members of the Committee constituted under sub-section (1) of section 2 of the Practice and Procedure Act, 2023 (Act of 2023) and the matter was taken up by the SC as Suo Moto Case No.01/2024 which is still pending.

13.        On 21st December 2024 Judicial Commission of Pakistan (Appointment of Judges) Rules 2024 (JCP Rules of 2024) were approved by the Judicial Commission of Pakistan (JCP) reconstituted under the 26th Constitutional Amendment4 which included members of the Parliament and Judges.

14.        After approval of the JCP Rules of 2024, the Members of JCP were asked to submit nominations by 3rd January 2025 for appointment of Additional Judges of different High Courts in accordance with the approved proforma developed by the Rules Making Sub Committee on 16th December 2024. At that time Sardar Muhammad Sarfraz Dogar, J. was working as Judge of Lahore High Court (LHC) and he was at S. No.15 of the seniority list of the Judges of LHC. Khadim Hussain Soomro, J. was working as Judge of High Court of Sindh (SHC) and he was at S.No.20 of the seniority list of the Judges of SHC.

15.        In the meeting of JCP for the High Court of Balochistan (BHC) dated 17th January 2025, nominations of Mr. Muhammad Asif (Advocate General Balochistan), Mr. Najam-ud-Din Mengal and Mr. Muhammad Ayub Tareen (practicing lawyers of Balochistan) for their appointment as Additional Judges of BHC were finalized. MoLJ issued the requisite notification on 18th January 2025 and they took oath as Additional Judges of BHC on 20th January 2025.

16.        Meeting of JCP to consider 28 candidates for appointment as Additional Judges in IHC against five vacancies was also held on 17th January 2025. Amongst 28 candidates, Mr. Adnan Basharat, Advocate Supreme Court (ASC) from Balochistan (presently working as Advocate General, Balochistan) was nominated by Ms. Roshan Khursheed Bharucha (member of JCP). Raja Jawwad Abbas Hassan, District & Sessions Judge (D&SJ), Islamabad (deputationist from the Province of Balochistan having been permanently absorbed in District Judiciary of ICT) was nominated by Syed Mansoor Ali Shah, J. Ms. Roshan Khursheed Bharucha, the then CJ IHC and Senator Syed Ali Zafar. Mr. Muhammad Azam Khan, D&SJ and Shahrukh Arjumand, D&SJ of District Judiciary of ICT were also the candidates.

17.        Minutes of the above meeting of JCP, provided to the Court by the learned Attorney General for Pakistan (A.G.), reveal that Syed Mansoor Ali Shah, J. requested the then CJ IHC to brief the Commission regarding the number and nature of pending cases in IHC. Furthermore, he inquired about the expertise areas of the sitting Judges and solicited opinion of the then CJ IHC on selecting nominees from specific areas of law that would enhance the efficiency of the High Court’s functioning. Para 6 of the minutes of the above meeting of JCP reveal the response of the then CJ IHC as follows:

        “In response to this query, the Chief Justice of the Islamabad High Court informed the members of the Commission that approximately 17,000 cases are currently pending in the Islamabad High Court. He explained that while constitutional litigation, particularly writ petitions, comprises a significant portion of the caseload, there are already a sufficient number of sitting Judges with expertise in this area of law. The Chief Justice emphasized that the Islamabad High Court requires Judges with expertise in civil and criminal law. For this reason, he had nominated three District & Sessions Judges, who generally possess expertise in both these area of law.”

18.        Para 8 of the minutes of the above meeting of JCP reveals that the learned A.G. shared information received from Intelligence Agencies regarding the general antecedents of some of the nominees. However, the JCP did not consider any of such information serious enough to disqualify the nominees concerned, and the nominees were not excluded from consideration based on it.

19.        In the first round of voting, Raja Jawwad Abbas Hassan, D&SJ, having secured 07 out of 16 votes, was not selected. The then CJ IHC (being his recommendee), Mr. Azam Nazeer Tarar, Federal Minister for Law and Justice, Mr. Mansoor Usman Awan, learned A.G., Senator Farooq Hamid Naek, Sheikh Aftab Ahmed, Mr. Akhter Hussain, Senior Advocate, Supreme Court, Ms. Roshan Khursheed Bharucha (being his recommendee) and Rana Tanveer Hussain, Federal Minister for Industries did not vote for him.

20.        In the first round of voting in the above meeting of JCP, Mr. Adnan Basharat, ASC secured only 2 votes of Jamal Khan Mandokhail, J. and Senator Syed Ali Zafar. Mr. Muhammad Azam Khan, D&SJ of District Judiciary of ICT secured 11 out of 16 votes and Mr. Inaam Ameen Minhas, ASC (nominated by Mr. Akhtar Hussain, Senior ASC) had secured 9 out of 16 votes.

21.        As per result of first round of voting, nominations of Mr. Muhammad Azam Khan, D&SJ and Mr. Inaam Ameen Minhas, ASC, having secured the votes of the majority of the total membership of the JCP, were finalized for their appointment as Additional Judges of the IHC

22.        In the second round of voting in the above meeting of JCP, Raja Jawwad Abbas Hassan, D&SJ again secured the same 7 out of 16 votes and did not qualify. Mr. Adnan Basharat, ASC again secured only 2 out of 16 votes of Senator Syed Ali Zafar and Mr. Gohar Ali Khan. He did not qualify. The remaining 4 nominees i.e. Ms. Nudrat Bayan Majeed, Advocate, Mr. Sultan Mazhar Sher Khan, ASC, Syed Qamar Hussain Shah Sabzwari, ASC and Mr. Umer Aslam Khan, ASC also did not secure the required majority of votes from the total membership of the JCP.

23.        In para 12 of the minutes of the above meeting, the JCP unanimously decided that the nominees whose nominations were withdrawn or who did not secure the required majority for finalization of their nominations in the meeting, may be nominated for future vacancies.

24.        Consequent to the above, the requisite notification was issued by MoLJ for appointment of Mr. Muhammad Azam Khan and Mr. Inaam Ameen Minhas as Additional Judges of the IHC on 20th January 2025 and three vacancies of Judges in IHC were left vacant. The then CJ IHC issued the following seniority list of the Judges of IHC on 23rd January 2025:

1.        Hon’ble Mr. Justice Aamer Farooq, Chief Justice

2.        Hon’ble Mr. Justice Mohsin Akhtar Kayani, Judge

3.        Hon’ble Mr. Justice Miangul Hassan Aurangzeb, Judge

4.        Hon’ble Mr. Justice Tariq Mehmood Jahangiri, Judge

5.        Hon’ble Mr. Justice Babar Sattar, Judge

6.        Hon’ble Mr. Justice Sardar Ejaz Ishaq Khan, Judge

7.        Hon’ble Mr. Justice Arbab Muhammad Tahir, Judge

8.        Hon’ble Justice Ms. Saman Rafat Imtiaz, Judge

9.        Hon’ble Mr. Justice Muhammad Azam Khan, Additional Judge

10.    Hon’ble Mr. Justice Inaam Ameen Minhas, Additional Judge

25.        As per letters dated 27th January 2025 and 28th January 2025, issued by Secretary JCP, the meeting of JCP for appointment of Judges in the SC against the available vacancies scheduled for 11th February 2025 was rescheduled for 10th February 2025 due to engagements of some of the members of JCP. The appointments were to be made from amongst 5 most senior Judges of all the High Courts of the country including IHC.

26.        After issuance of letter dated 28th January 2025 by the Secretary JCP for rescheduled meeting of JCP on 10th February 2025 for appointment of Judges in the SC, on the same date i.e. 28th January 2025 a summary was initiated by the Secretary MoLJ for the PM which reads as follows:

“Subject:    INITIATION OF PROCESS UNDER CLAUSE (1) OF ARTICLE 200 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN

The functions of the Federal Government with regard to inter-alia Supreme Court and High Courts are allocated to Ministry of Law and Justice under entry 21 of item 10 of the Schedule-II to the Rules of Business.

2.        Under Article 200 of the Constitution of the Islamic Republic of Pakistan, the President may transfer a Judge of a High Court to another High Court with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts. Clause (1) of Article 200 of the Constitution (Annex-I) is reproduced for ready reference:-

“200 (1) The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts.“

3.        Section 3 of the Islamabad High Court Act, 2010 provides that the Islamabad High Court shall consist of a Chief Justice and twelve other Judges to be appointed from the provinces and others territories of Pakistan in accordance with the Constitution.

4.        Currently there is no Judge from rural Sindh serving in the Islamabad High Court and for the Province of Punjab there is only one Judge, hence, the representation of the Province of Punjab is also unproportionate. Therefore, in terms of Schedule-V-B of the Rules of Business, 1973 read with Article 48 of the Constitution of Pakistan, the Prime Minister of Pakistan may advise the President to authorize Ministry of Law and Justice to initiate the following process under clause (1) of Article 200 of the Constitution:

(i)    to seek consent of Mr. Justice Sardar Muhammad Sarfraz Dogar, Judge, Lahore High Court for his transfer from Lahore High Court to Islamabad High Court;

(ii)    to seek consent of Mr. Justice Khadim Hussain Soomro, Judge, High Court of Sindh for his transfer from High Court of Sindh to Islamabad High Court;

(iii)    consultation with the Chief Justice of Pakistan; and

(iv)    consultation with the Chief Justices of the Lahore High Court, High Court of Sindh and Islamabad High Court.”

27.        On the same date i.e. 28th January 2025, in terms of schedule-V-B of the Rules of Business 1973 read with Article 48 of the Constitution, the PM advised the President to approve the proposal at para 4 of the above summary. On the same date i.e. 28th January 2025, the PM’s advise was approved by the President.

28.        On 29th January 2025 Secretary MoLJ wrote letter to Sardar Muhammad Sarfraz Dogar, J. of LHC soliciting his consent for his transfer from LHC to IHC. He consented for his transfer on the same date vide letter dated 29th January 2025 which was also received in the office of Secretary MoLJ on 29th January 2025. On the same date, Secretary MoLJ wrote letter to Registrar LHC for placing the matter before CJ, LHC for consultation/concurrence for transfer of Sardar Muhammad Sarfraz Dogar, J. of LHC to IHC. Registrar LHC conveyed concurrence of CJ, LHC to Secretary MoLJ vide letter dated 31st January 2025.

29.        On 30th January 2025 Secretary MoLJ wrote letter to Khadim Hussain Soomro, J. of SHC soliciting his consent for his transfer from SHC to IHC. He consented for his transfer vide letter dated Nil. On 31st January 2025, Secretary MoLJ wrote letter to Registrar SHC for placing the matter before CJ, SHC for consultation/concurrence for transfer of Khadim Hussain Soomro, J. of SHC to IHC. On the same day, vide letter dated 31st January 2025, the Registrar SHC conveyed the concurrence of CJ, SHC to Secretary MoLJ.

30.        On 31st January 2025 Secretary MoLJ wrote letter to Muhammad Asif, Additional Judge of BHC soliciting his consent for his transfer from BHC to IHC. He consented for his transfer vide letter dated Nil which was received in the office of Secretary MoLJ on the same day i.e. 31st January 2025. On the same date i.e. 31st January 2025, Secretary MoLJ wrote letter to Registrar BHC for placing the matter before CJ, BHC for consultation/concurrence for transfer of Muhammad Asif, Additional Judge, BHC to IHC. Since CJ, BHC was abroad due to winter vacations, therefore the matter was placed before the Acting CJ, BHC by the Registrar. On the same day, vide letter dated 31st January 2025, the Registrar BHC conveyed the concurrence of the Acting CJ, BHC to Secretary MoLJ.

31.        On 1st February 2025, Secretary MoLJ wrote letter to the Registrar IHC for placing the matter before the then CJ IHC for consultation/concurrence for transfer of above three Judges to IHC. On the same day i.e. 1st February 2025, Additional Registrar, (Estb.) IHC conveyed concurrence of the then CJ IHC to Secretary MoLJ.

32.        On the same day i.e. 1st February 2025 Secretary MoLJ wrote letter to the Registrar SC to place the matter before CJP for consultation/concurrence for transfer of above three Judges to IHC. On the same day, vide letter dated 1st February 2025, the Registrar SC conveyed concurrence of Hon’ble CJP to Secretary MoLJ.

33.        After availing consent of the Transferee Judges, concurrence of the Chief Justices of LHC, SHC, BHC, the then CJ IHC and CJP, Secretary MoLJ moved summary on the same date i.e. 1st February 2025 for approval of the proposal contained at paragraph-4 of the said summary (reproduced hereinbelow) with the statement that the Federal Minister for Law & Justice has seen and authorized the submission of the summary:

        “In view of the above, the Prime Minister may advise the President of Pakistan to transfer the following:

(i)    Mr. Justice Sardar Muhammad Sarfraz Dogar, Judge, Lahore High Court from Lahore High Court to Islamabad High Court;

(ii)    Mr. Justice Khadim Hussain Soomro, Judge, High Court of Sindh from High Court of Sindh to Islamabad High Court; and

(iii)    Mr. Justice Muhammad Asif, Judge, High Court of Balochistan from High Court of Balochistan to Islamabad High Court;

Since the above-mentioned Judges are being transferred and this is not a fresh appointment, therefore, no fresh oath is required under Article 200 of the Constitution. Furthermore, seniority of the above-mentioned Judges, upon transfer to the Islamabad High Court, shall be reckoned from the day they entered upon the office of the Judge in their respective High Courts.”

34.        On the same day i.e. 1st February 2025, the PM advised the President to approve the above proposal. It was accordingly approved by the President and Secretary MoLJ issued the impugned notification on the same date i.e. 1st February 2025. The Transferee Judges joined IHC on 2nd February 2025.

35.        In supersession of the previous seniority list dated 23rd January 2025, the then CJ IHC issued and fixed the seniority of the Judges of the IHC on 3rd February 2025 as follows:

1.        Hon’ble Mr. Justice Sardar Muhammad Sarfraz Dogar, Senior Puisne Judge

2.        Hon’ble Mr. Justice Mohsin Akhtar Kayani, Judge

3.        Hon’ble Mr. Justice Miangul Hassan Aurangzeb, Judge

4.        Hon’ble Mr. Justice Tariq Mehmood Jahangiri, Judge

5.        Hon’ble Mr. Justice Babar Sattar, Judge

6.        Hon’ble Mr. Justice Sardar Ejaz Ishaq khan, Judge

7.        Hon’ble Mr. Justice Arbab Muhammad Tahir, Judge

8.        Hon’ble Justice Ms. Saman Rafat Imtiaz, Judge

9.        Hon’ble Mr. Justice Khadim Hussain Soomro, Judge

10.    Hon’ble Mr. Justice Muhammad Azam Khan, Additional Judge

11.    Hon’ble Mr. Justice Muhammad Asif, Additional Judge

12.    Hon’ble Mr. Justice Inaam Ameen Minhas, Additional Judge

36.        On the same date i.e. 3rd February 2025, the then CJ IHC reconstituted the Departmental Promotion Committee (DPC) in terms of rule 2(g) of the Islamabad Judicial Service Rules, 2011 (Rules of 2011) vide Notification (F.No.(39/Conf./IHC/3489) comprising of the following Judges:

1.        Justice    Sardar    Muhammad    Sarfraz    Dogar, Senior Puisne Judge (Member-I)

2.        Justice Azam Khan, Additional Judge (Member-II)

37.        On the same date i.e. 3rd February 2025 in supersession of Notification dated 11th November 2022, the then CJ IHC reconstituted the Administration Committee of IHC as follows:

1.        Justice Aamer Farooq, Chief Justice (Chairman)

2.        Justice Sardar Muhammad Sarfraz Dogar, Senior Puisne Judge (Member-I)

3.        Justice Khadim Hussain Soomro, Judge (Member-II)

38.        The seniority list dated 3rd February 2025 and the above two notifications dated 3rd February 2025 were objected by Babar Sattar, J. of IHC by writing letter dated 4th February 2025 to the then CJ IHC.

39.        On 4th February 2025 Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, and Saman Rafat Imtiaz JJ. of IHC preferred representation to the then CJ IHC expressing their grievance on alteration of their list of seniority/issuance of seniority list dated 3rd February 2025 on the grounds that the three Transferee Judges have to take oath on their transfer to IHC and their seniority ought to be fixed from the date on which they take oath as Judges of IHC. It was further requested that the representation be decided prior to the upcoming meeting of JCP scheduled for 10th February 2025 for appointment of Judges in the SC.

40.        While relying upon the cases of SC Advocate on Record Association v. Union of India5, Justice Muhammad Farrukh Irfan Khan v. Federation of Pakistan6 and Muhammad Aslam Awan Advocate Supreme Court v. Federation of Pakistan7, the then CJ IHC turned down the above representation vide order dated 8th February 2025.

41.        Minutes of the meeting of JCP (for SC) dated 10th February 2025, provided to the Court by the learned A.G., reveal that nominations for appointment of Judges in the SC were considered for eight vacancies. While recognizing the need for appointment of more Judges to the SC to address the ever increasing backlog of cases, Senator Syed Ali Zafar and Mr. Gohar Ali Khan (member of JCP) requested to postpone the appointments until the issue of the seniority of Judges in IHC was finally determined judicially.

42.        The response of CJP/Chairperson JCP to the above request was as follows:

        “In response, the Chairperson observed that, in his opinion, a Judge transferred to the Islamabad High Court cannot be senior to the Judges originally appointed there. He explained that, as per his understanding, a transfer under Article 200(1) of the Constitution is temporary in nature and for a specific period. The transferred Judges retain their seniority in their parent High Court, and their seniority does not merge with that of the Judges of the transferee High Court, as there is no concept of joint inter se seniority of Judges across all High courts in Pakistan. The Chairperson observed that he held this opinion which was subject to the matter being judicially decided, and once a judicial determination was made, he would follow and act upon that decision, regardless of his own contrary view. In his opinion, this is how the system functions. While he did not wish to impose his opinion on others, he equally could not be compelled to yield to opposing views.”

43.        In the above meeting, the stance of the learned A.G. was as follows:

        “8. The Attorney-General, however, did not agree with the Chairperson’s opinion on the seniority of Judges transferred to the Islamabad High Court. He stated that the transfer of three Judges, including Mr. Justice Sardar Muhammad Sarfraz Dogar, to the Islamabad High Court was not temporary under clause (3) of Article 200 but was permanent under clause (1) of Article 200. Regarding seniority, he was of the view that this transfer was made in the public interest—not at the request of the Judges but by the President after consulting the Chief Justice of Pakistan and the concerned Chief Justices of the High Court. The Judges were asked for their consent, to which they agreed, not for personal benefit but at the request of the President in the public interest. Therefore, they could not be placed at the bottom of the seniority list. Had they been civil servants—which they are not—such a principle could have been applied and that too when such transfer was made not in the interest of public but on the request of a transferred judge.

5.        He further explained that the seniority rules for civil servants do not apply to Judges of the superior judiciary, as High Court and Supreme Court Judges are not civil servants. The Constitution envisions an entirely separate scheme regarding their terms and conditions of service. Article 205 stipulates that their remuneration and other terms and conditions of service shall be as provided in the Fifth Schedule, which, in turn, empowers the President in this regard. Thus, applying principles governing civil servants’ transfers to the Judges of the High Courts and the Supreme Court would take away the safeguards provided to the superior judiciary by the Constitution. He concluded that the inter se seniority of High Court Judges, as determined by their respective Chief Justices, could not be called into question by the Commission. Any such determination could only be assailed before the Supreme Court under Article 184(3). In this regard, he referred to the case of Justice Farrukh Irfan Khan (PLD 2019 SC 509).

44.        In the above meeting of JCP, after the first round of voting, the nominations of Aamer Farooq, the then CJ IHC, Muhammad Hashim Khan Kakar, Chief Justice BHC, Ishtiaq Ibrahim, Chief Justice Peshawar High Court (PHC), Shakeel Ahmed, J. of PHC, Muhammad Shafi Siddiqui, Chief Justice SHC and Salahuddin Panhwar, Senior Puisne Judge SHC were finalized by JCP as they had secured votes of the majority of the total membership of the JCP. For the remaining two vacancies, second round of voting was conducted but none of the remaining nominees secured the required majority votes from the total membership of JCP. The requisite notification for appointment of 6 Judges to the SC was issued by MoLJ on 12th February 2025.

45.        Para 19 of the minutes of the above meeting of JCP reveals that CJP/Chairman JCP requested the members of JCP to consider the name of Miangul Hassan Aurangzeb, J. of IHC for his appointment as Acting Judge of the SC under Article 181 of the Constitution due to a pressing need for a Judge with expertise in tax and corporate law to address the backlog of such cases in the SC. Following a brief discussion on the expertise of the nominee Judge, voting was conducted wherein Miangul Hassan Aurangzeb, J. secured 9 out of 13 votes and JCP approved his nomination for appointment as Acting Judge of the SC. The requisite notification was issued by MoLJ on 12th February 2025.

46.        Sardar Muhammad Sarfraz Dogar, Senior Puisne Judge, IHC was appointed as Acting CJ IHC by the President and in this regard notification dated 12th February 2025 was issued by MoLJ.

47.        On 28 February 2025 Islamabad High Court (Practice and Procedure) Rules, 2025 were approved by the Administration Committee of IHC which were objected by Saman Rafat Imtiaz, J. of IHC vide letters dated 28th February 2025 and 11th March 2025 addressed to the Registrar IHC. The said rules were placed before the Full Court in its meeting dated 3rd September 2025 and same were approved by a slim majority of six to five in the Full Court Meeting of IHC. Mohsin Akhter Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz, JJ., being the dissenting Judges, raised objections on approval of the said rules for having not been allowed considerable time to examine the same thoroughly. But their objections were overruled by the Acting CJ IHC.

48.        On 18th March 2025 the Islamabad Subordinate Judiciary Service Tribunal (the Tribunal) was reconstituted as follows by the President vide Notification No.9(1)/2013-A.II (Vol.I):

1.        Justice Khadim Hussain Soomro, Chairman

2.        Justice Muhammad Azam Khan, Member

3.        Justice Inaam Ameen Minhas, Member

49.        The above reconstitution of the Tribunal was objected by Tariq Mehmood Jahangiri, J. (previous Chairman), Babar Sattar, J. (previous Member) and Sardar Ejaz Ishaq Khan, J. (previous Member) of the Tribunal vide letter dated 18th March 2025 addressed to the Acting CJ IHC.

50.        On 25th March 2025 the IHC made the Islamabad High Court Establishment (Appointment and Conditions of Service) Rules, 2025 (The Rules of 2025) which were approved by the President and published on 10th April 2025 in the Gazette as S.R.O.585(1)/2025.

III.        Locus Standi of the Petitioners:

51.        Learned A.G. raised objection on the locus standi of the petitioners to challenge the impugned notification by filing the instant CPs under Article 184(3) of the Constitution.

    In response to the objection raised by learned A.G., learned counsel for the petitioners contended that in all these petitions question of public importance relating to interpretation of the provisions of the Constitution with regard to transfer of Judges from one High Court to another Higher Court is involved; under the Constitution this Court is entrusted with task of interpreting the provisions of the Constitution, therefore, the objection raised by learned A.G. be overruled and the CPs be decided on merits.

52.        CP No.22 of 2025 has been filed by Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir, and Saman Rafat Imtiaz, JJ. of IHC. CP No. 20 of 2025 has been filed by Raja Muqsid Nawaz Khan. CP No. 25 of 2025 has been filed by Mr. Imran Ahmad Khan Niazi. CP No. 26 of 2025 and CP No. 27 of 2025 have been filed by Lahore High Court Bar Association and Lahore Bar Association respectively. CP No. 28 of 2025 has been filed by Karachi Bar Association. CP No. 30 of 2025 has been filed by Mr. Riasat Ali Azad, Advocate.

53.        In all the above CPs, the question involved, being of public importance, is that of interpretation of clause (1) of Article 200 of the Constitution relating to transfer of three Judges from LHC, SHC and BHC to IHC. We are mindful of the fact that independence of judiciary is inseparably linked with the constitutional process of transfer and appointment of Judges of the superior courts. In the case of Al-Jehad Trust v. Federation of Pakistan8 it has been laid as follows by this Court:

        “13. We are of the view that the petitioner has rightly invoked the jurisdiction of this Court under Article 184(3) of the Constitution and leave has rightly been granted in the other petition for the reason that in both the cases common question of interpretation of the Articles relating to the Judiciary are involved, which are of public importance. We are not impressed by the contention that interpretation of the Articles in these cases would be merely an exercise of academic nature. On the contrary, it can be said that this exercise has become very essential and necessary and would help a great deal in making the matters very clear by interpreting the relevant provisions of the Constitution relating to the Judiciary. It is held by this Court in the case of Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 that the interpretation of the Constitution is the prerogative as well as the duty of the superior Courts as envisaged in the Constitution and this interpretative function cannot be a mere academic exercise without relation to concrete dispute, either between a subject and subject or between a subject and the State. It is further held that cases of conflict between the supreme law of the Constitution and an enactment might come for adjudication before the Courts and in such cases, it would be plain duty of the superior Courts, as its preservers, protectors and defenders, to declare the enactment in question as invalid to the extent of its repugnancy with the Constitutional provisions. The power of judicial review therefore must exist in Courts of the country in order that they may be enabled to interpret the Constitution in all its multifarious bearings on the life of the citizens in this country. It is also held that the Constitution ought to be interpreted as an organic whole giving due effect to its various parts and trying to harmonise them, so as to make it an effective and efficacious instrument for the governance of the country. The abovementioned judgment is noticed in the case of the State v. Zia-ur-Rahman and others PLD 1973 SC 49 and it is held that the Supreme Court is the creature of the Constitution and does not claim any right to strike down any provision of the Constitution, but does claim right to interpret the Constitution, even if a provision in the Constitution is a provision seeking to oust the jurisdiction of the Court. This right to interpret the Constitution is not acquired de hors the Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or super-natural right but this judicial power is inherent in the court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself.

54.        In the above case, in his separately recorded reasons, which were agreed by Fazal Elahi Khan, J. and Manzoor Hussain Sial, J., Ajmal Mian, J. held as follows:

        “23. Adverting to the above second peculiar feature that our country has Federal system of Government which is based on trichotomy of power, it may be observed that each organ, of the State is required to function/operate within the bounds specified in the Constitution though one can say that the Judiciary is the weakest limb as it does not have the resources or power which the Legislature or the Executive enjoy but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or of any other law and because of the above nature of the work entrusted to the Judiciary, it was envisaged in the Constitution that the Judiciary shall be independent. I may reiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary.”

55.        In the case of Sindh High Court Bar Association v. Federation of Pakistan9 two CPs bearing Nos. 8 & 9 of 2009 were filed.

        In the above case, in CP No. 9 of 2009, Sindh High Court Bar Association had challenged removal of Judges of SC and High Courts in violation of Article 209 of the Constitution; purported acts done by General Pervez Musharraf (Retd.) between 3rd November 2007 and 16th December 2007 aimed at suspending and amending the Constitution through several instruments; appointment of Judges of superior judiciary on or after 3rd November 2007 up till 23rd March 2008 without consultation of de jure CJP; opinion of Mr. Justice Abdul Hameed Dogar, as then he was called, that term of office of two additional Judges of SHC (Zafar Ahmed Khan Sherwani J. and Abdul Rasheed Kalhwar J.) had not expired; validity of two judgments of SC dated 23rd November 2007 and 15th February 2008 in CP Nos. 87 & 88 of 2007 filed by Tikka Iqbal Muhammad Khan and Watan Party reported in PLD 2008 SC 6 and PLD 2008 SC 178 and Review petition No. 7 of 2008 reported in PLD 2008 SC 615.

        In the above case, CP No. 8 of 2009 was filed by Nadeem Ahmed, a practicing Advocate, wherein while criticizing the judgment delivered by this Court in the case of Tikka Iqbal Muhammad Khan v. Federation of Pakistan (PLD 2008 SC 178) it was, inter alia, averred as follows: –

“All the persons who were not judges on 3rd November 2007 but who were brought into Supreme Court and High Courts as ‘judges’ despite the fact that the Honourable Chief Justice of Pakistan was never consulted before their appointment which meant that they were never appointed under the Constitution.

AND

“On the night of 22nd March 2009, issuance of cause lists comprising persons who have not been appointed in strict adherence to Article 177 and who are therefore complete stranger to the Supreme Court, is a serious matter and it is incumbent on the Honourable Chief Justice, before proceeding with any other judicial work, to forthwith stop all these persons from hearing any cases till such time that he, along with other validly appointed judges, are able to look into and judicially determine validity of their appointments as judges.”

56.        In the above case, the locus standi of both the petitioners i.e. Sindh High Court Bar Association and Nadeem Ahmed, Advocate was not challenged by the then learned A.G. (Sardar Muhammad Latif Khan Khosa). However, in CP No.9 of 2009, the following position was taken by the then learned AG:

“On merits of Constitution Petition No.09 of 2009, the learned Attorney General took the position that the respondents Nos. 3 and 4, being aggrieved of their non-confirmation could have filed a petition, but not the Sindh High Court Bar Association. The respondents Nos. 3 & 4 were recommended by the Chief Justice of the High Court alone, while the Governor, the Chief Justice of Pakistan, the Prime Minister and the President of Pakistan had not agreed. The opinion of the Chief Justice of Pakistan, being the paterfamilias, deserved primacy, which even otherwise was not justiciable in view of the law laid down in Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 SC 939). He, however, stated that whatever view was taken by the apex Court, it would be acceptable to the Government.”

57.        CP Nos. 8 & 9 of 2009 in the above referred case were disposed of on merits by this Court vide short order dated 31st July 2009 which was followed by the detailed reasons wherein it was held as follows:

“It is clear that the power of judicial review is a cardinal principle of the Constitution. The judges, to keep the power of judicial review, strictly judicial, in its exercise, do take care not to intrude upon the domain of other branches of the Government. It is the duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the legislature……………………………………

It is a fundamental principle of our jurisprudence that courts must always endeavor to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. This expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the courts and judges. It is to this and that the power of judicial review was being exercised by the judiciary before 3rd November 2007. Indeed the power of judicial review was, and would continue to be, exercised with strict adherence governing such exercise of power, remaining within the sphere allotted to the judiciary by the Constitution.”

58.        In the case of A. K. Kaul v. Union of India10 it has been held as follows by the SC of India:

“Since the task of interpreting the provisions of the Constitution is entrusted to the judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touchstone of the Constitution. In order to ensure that the authority exercising the power conferred by the constitution does not transgress the limitations placed by the Constitutions on exercise of that power. This power of judicial review is, therefore, implicit in a written Constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution.”

59.        In the case of Raja Ram Pal v. Speaker, Lok Sabha11, while dilating upon the role of SC of India, it was held as follows:

“It was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly.“

60.        In the case of I.R. Coelho v. State of Tamil Nadu12 it was held as follows by the SC of India:

“The judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation………………

It was a cardinal principle of the Constitution that no one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution.“

61.        In the case of District Bar Association, Rawalpindi v. Federation of Pakistan13 number of petitions were filed under Article 184(3) of the Constitution challenging some of the amendments made in the Constitution by the Constitution (Eighteenth Amendment) Act, 2010 (Act of 2010). The primary focus in the petitions filed on behalf of various Bar Associations was on the change introduced through Article 175A of the Constitution whereby an entirely new procedure for appointment of Judges of SC, High Courts and Federal Shariat Court through JCP was introduced. After conclusion of arguments, an interim order was passed14 whereby the matter of appointment of Judges was referred to the Parliament for re-examination with proposals stated in paragraph 10 read with paragraph 13 of the said interim order. After referring the matter to the Parliament to enable it to re-examine it in terms of observations made, all the petitions were adjourned.

62.        Article 175A was reconsidered by the Parliament in the light of the said interim order and changes were made therein through Constitution (Nineteenth Amendment) Act, 2010 whereby instead of two senior most Judges of the SC four were made part of the JCP. The parliamentary committee was required to record its reasons in case of not confirming the nomination by three-fourth majority and that the non-confirmation decision would be forwarded with reason so recorded to the JCP through the PM. In such eventuality, JCP shall send another nomination.

63.        All the petitions challenging the Eighteenth Amendment were still pending before this Court when two other amendments were made on 7th January 2015 empowering military courts to try a certain class of civilians by the Pakistan Army (Amendment) Act, 2015 (Act II of 2015) and the Constitution (Twenty First Amendment Act, 2015) (Act 1 of 2015) whereby the following proviso was added to Article 175A of the Constitution:

        “Provided that the provisions of this Article shall have no application to the trial of the persons under any of the Acts mentioned at serial Nos. 6, 7, 8 and 9 of sub-part III or Part I of the First Schedule, who claims, or is unknown, to belong to any terrorist group or organization using the name of religion or a sect.

        Explanation: In this proviso, the expression ‘sect’ means a sect of religion and does not include any religious or political party regulated under the Political Parties Order, 2002.”

        By the same Act, First Schedule of the Constitution was amended to include following new entries in sub-part III of part I after entry Number 5:

“(6)        The Pakistan Army Act (XXXXIX of 1952)

(7)        The Pakistan Air Force Act, 1953 (VI of 1953)

(8)        The Pakistan Navy Ordinance, 1961 (XXXV of 1961)

(9)        The Protection of Pakistan Act, 2014 (X of 2014)”

64.        The above amendments were also challenged in number of petitions, mostly filed by Bar Associations. All the petitions challenging the 18th and 21st Amendments to the Constitution were clubbed and heard together by this Court.

65.        In all the above petitions, while defending the amendments in the Constitution and challenging the jurisdiction of this Court to question a Constitutional amendment on any touchstone whatsoever, no objection was raised by the then learned A.G. (Mr. Salman Aslam Butt) upon locus standi of the petitioners, including Bar Associations to challenge the amendments.

66.        By a majority of 13 to 4, all the Constitution Petitions were held maintainable by this Court. However, by majority of 14 to 3, the Constitution Petitions challenging the Constitution (Eighteenth Amendment) Act (Act X of 2010) were dismissed while by majority of 11 to 6, the Constitution Petitions challenging the Constitution (Twenty First Amendment) Act (Act I of 2015) and the Pakistan Army (Amendment) Act (Act II of 2015) were dismissed.

67.        In all the instant CPs, question of public importance with regard to interpretation of Clause (1) of Article 200 of the Constitution relating to transfer of three Judges from LHC, SHC and BHC to IHC by the President is involved. The task of interpreting the provisions of the Constitution is entrusted to the judiciary. Interpretation of the Constitution is the prerogative and duty of the superior courts as envisaged in the Constitution. Moreover, judicial review is a basic feature of the Constitution. The judiciary is vested with the power to test the validity of an action of every authority functioning under the Constitution. It is the duty of the judiciary to determine the legality of the executive action so that the rights of the people are guarded against arbitrary violations by the executive.

68.        In CP No. 22/2025 the petitioners, being serving Judges of IHC, having been adversely affected due to issuance of the impugned notification and by all the subsequent events, having no other alternate remedy except approaching this Court, fall within the definition of the aggrieved persons. Similarly the Advocates and the Bar bodies in CP No.20/2025, 26/2025, 27/2025, 28/2025 and 30/2025 as well as the petitioner Mr. Imran Ahmed Khan Niazi (being a politician/citizen of Pakistan/a tax payer) have also raised important question with regard to interpretation of the provisions of the Constitution with regard to transfer of Judges from one High Court to another High Court. The Advocates and the Bar bodies are always sensitive and have always endeavored to approach the superior courts whenever there is any threat to the independence of judiciary by any arbitrary executive action.

69.        For the above reasons, without conceding to the contents of para-4 of CP No.25/2025 (filed by Mr. Imran Ahmed Khan Niazi), the objection raised by learned A.G. with regard to locus standi of the petitioners to file the instant CPs under Article 184 (3) of the Constitution is overruled.

IV.        Unnecessary Haste:

70.        The process for transfer of three Judges to IHC was initiated on 28th January 2025 (Tuesday) and it was completed on 1st February 2025 (Saturday) i.e. within five days. Summary for the PM to advise the President to authorize MoLJ for initiating the process for transfer of Sardar Muhammad Sarfraz Dogar, J. of LHC and Khadim Hussain Soomro, J. of SHC to IHC was initiated by Secretary MoLJ on 28th January 2025. On the same date, the PM advised the President to approve the proposal. The PM’s advise was approved by the President on the same date.

71.        Letter for obtaining consent of Sardar Muhammad Sarfraz Dogar, J. was written by MoLJ on 29th January 2025 and his consent was also received by MoLJ on the same date. Letter for obtaining consent of Khadim Hussain Soomro, J. was written by MoLJ on 30th January 2025 and his consent was received by MoLJ vide letter dated Nil. Letter for obtaining consent of Muhammad Asif, J. was written by MoLJ on 31st January 2025 and his consent was also received by MoLJ on the same date through his letter dated Nil.

72.        The letter for consultation/concurrence of CJ LHC was written by MoLJ on 29th January 2025 and concurrence of CJ LHC was conveyed in writing to MoLJ vide letter dated 31st January 2025. The letter for consultation/concurrence of CJ SHC was written by MoLJ on 31st January 2025 and concurrence of CJ SHC was conveyed in writing to MoLJ on the same date. The letter for consultation/concurrence of CJ BHC was written by MoLJ on 31st January 2025 and concurrence of CJ BHC was conveyed in writing to MoLJ on the same date.

73.        The letter for consultation/concurrence of the then CJ IHC for transfer of three particular Judges to IHC was written by MoLJ on 1st February 2025 and concurrence of the then CJ IHC in writing was conveyed in writing to MoLJ on the same date. Similarly letter for consultation/concurrence of CJP for transfer of three particular Judges to IHC was written by MoLJ on 1st February 2025 and concurrence of CJP was conveyed to MoLJ in writing on the same date.

74.        After availing consent of the Transferee Judges, concurrence of CJs of the High Courts and CJP in haste, Secretary MoLJ moved summary on the same date i.e. 1st February 2025 for the PM to advise the President to transfer Sardar Muhammad Sarfraz Dogar, J. Khadim Hussain Soomro, J. and Muhammad Asif, J. to IHC. The PM advised the President to approve the said transfer on the same date. The President accordingly approved the same on the same date and Secretary MoLJ issued the impugned notification on the same date i.e. 1st February 2025.

75.        All the above transpires that the process for transfer of three particular Judges to IHC was initiated and completed by MoLJ with unnecessary haste not in the public interest but, prima facie, with the motive to deprive the then Senior Puisne Judge of IHC (Mohsin Akhtar Kayani, J.) of his consideration/appointment as CJ IHC and to take over control of the affairs of IHC and District Judiciary of ICT from the sitting Judges of IHC and to hand over the same to the Transferee Judges and Additional Judges in supervision of Sardar Muhammad Sarfraz Dogar, J. as Senior Puisne Judge IHC and thereafter as Acting CJ IHC and CJ IHC. All the events subsequent to issuance of the impugned notification in the IHC (mentioned in para Nos.35, 36, 37, 40, 47, 48 and 50) have proved the same.

V.        Malice in Facts and Malice in Law:

76.        In the legal context an action actuated with an ulterior purpose is malicious or malice in facts. 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 law15.

77.        Para-4 of the summary dated 28th January 2025 initiated by Secretary MoLJ for the PM (reproduced in para-26) reveal that the said summary has not been initiated on the desire/instructions of the President rather the MoLJ initiated the said summary soliciting PM to advise the President to authorize MoLJ for initiating the process for transferring Sardar Muhammad Sarfraz Dogar, J. of LHC and Mr. Khadim Hussain Soomoro, J. of SHC for their transfer to IHC. The narration/language of the summary reveals that the process for transfer of the above two Judges to IHC was not initiated on the desire/instructions of the President and the record is silent as to upon whose instructions MoLJ initiated the said summary.

78.        In the above summary dated 28th January 2025, Secretary MoLJ had only solicited authorization of the President to initiate the process for transferring Sardar Muhammad Sarfraz Dogar, J. of LHC and Khadim Hussain Soomro, J. of SHC to IHC and no authorization of the President was solicited by Secretary MoLJ to initiate process for transferring Muhammad Asif, Additional Judge of BHC to IHC. He has been transferred to IHC without initiation of any summary by MoLJ.

79.        There is no bifurcation of the areas of the provinces in the Constitution as “rural” or “urban” but surprisingly in para-4 of the above referred summary it has been mentioned that there is no Judge from rural Sindh serving in IHC whereas Saman Rafat Imtiaz, J. was appointed in IHC from the province of Sindh. Similarly it has wrongly been mentioned in para-4 of the above summary that there is only one Judge from the province of Punjab whereas Aamir Farooq, CJ IHC, Sardar Ejaz Ishaq Khan, J. and Babar Sattar, J. were appointed in IHC from the province of Punjab.

80.        Sub-section (1) of section 3 of IHC Act of 2010 reads as follows:

        “The Islamabad High Court shall consist of a Chief Justice and [twelve] other Judges to be appointed from the provinces and other territories of Pakistan, in accordance with the Constitution.“

        Rule 6 of the JCP Rules of 2024 reads as follows:

        “Diversity in Appointments.—In initiating and finalizing the nominations for the appointment of Judges in the High Courts, the Members shall, subject to the prescribed criteria, ensure proper diversity in terms of gender, region and religion.“

The object of proportionate representation of the provinces in IHC/regional diversity, as mentioned by MoLJ in the summary dated 28th January 2025 only for two Judges of LHC and SHC, could have conveniently been achieved by appointing Judges from the provinces by JCP under Article 175A of the Constitution instead of transferring Judges from LHC, SHC and BHC to IHC under Clause (1) of Article 200.

81.        As an instance, reference in the above regard is made to the minutes of the meeting of JCP (for IHC) dated 17th January 2025 (referred in para Nos.16 to 23) which reveal that Raja Jawwad Abbas Hassan, D&SJ, Islamabad (deputationist from Balochistan having been absorbed in District Judiciary of ICT) and Mr. Adnan Basharat, ASC (presently working as Advocate General, Balochistan) were the nominees for appointment as Judges of IHC. Surprisingly in two rounds of voting, Raja Jawwad Abbas Hassan, D&SJ was not voted by the then CJ IHC (despite being recommendee), by Mr. Azam Nazir Tarar, Federal Minister for Law & Justice, by Mr. Mansoor Usman Awan, learned A.G., by Senator Farooq Hamid Naek, Sheikh Aftab Ahmed, Mr. Akhter Hussain, Senior Advocate, by Ms. Roshan Khursheed Bharucha (despite being recommendee) and Rana Tanveer Hussain, Federal Minister for Industries. Similarly, Mr. Adnan Basharat, ASC secured only two votes of Jamal Khan Mandokhail, J. and Senator Syed Ali Zafar in the first round of voting while in the second round of voting again he secured only two votes of Senator Syed Ali Zafar and Mr. Gohar Ali Khan. In the above meeting of JCP it was unanimously decided that the nominees whose nominations were withdrawn or who did not secure the required majority in the meeting, may be nominated for future vacancies.

82.        The above reveals that instead of filling five available vacancies of Judges in IHC, only two were filled on 17th January 2025 and three vacancies of Judges in IHC were deliberately/by design left vacant for filling the same subsequently by transferring three Judges from different High Courts to IHC in the garb of discretionary powers of the President under Clause (1) of Article 200 of the Constitution.

83.        In all the letters written by Secretary MoLJ for obtaining consent of the Transferee Judges and for consultation/concurrence of the CJs of the High Courts and CJP, neither the nature of transfer i.e. permanent or temporary nor the issue of seniority or taking fresh oath by the Transferee Judges were mentioned and in this regard no input was availed by MoLJ from all the concerned. In this regard the CJP was also kept in dark by MoLJ.

        During the whole process, for the first time, without having any lawful authority, Secretary MoLJ introduced a decisive para-4 in the summary dated 1st February 2025 (reproduced in para-33) stating therein that no fresh oath is required by the Transferee Judges and that their seniority shall be reckoned from the day when they had entered upon the office of Judge in their respective High Courts.

84.        Under Clause (1) of Article 200 of the Constitution, consultation by the President with the CJP and CJs of the High Courts is mandatory. The consultation is supposed to be effective, meaningful, purposive, consensus oriented leaving no room for complaint of arbitrariness or unfair play16. The process for transfer of three Judges to IHC is lacking effective, meaningful and consensus oriented consultation by the President with the CJP and CJs of the High Courts.

85.        Record does not reveal of any criteria for particularly selecting the three Transferee Judges for their transfer to IHC. Sardar Muhammad Sarfraz Dogar, J. was at Sl. No.15 of the seniority list of the Judges of LHC. Khadim Hussain Soomro, J. was at Sl. No.20 of the seniority list of Judges of SHC while Muhammad Asif, J. was appointed as Additional Judge of BHC with Mr. Najam-ud-Din Mengal, J. and Mr. Muhammad Ayub Tareen, J. on 18th January 2025. There is no reason on record as to why all the Judges senior to Sardar Muhammad Sarfraz Dogar, J. in LHC, all the Judges senior to Khadim Hussain Soomro, J. in SHC and all the Judges senior to Muhammad Asif, J. in BHC were ignored/not considered for their transfer to IHC.

86.        All the above transpire that the process for transfer of three Judges from LHC, SHC and BHC to IHC vide impugned notification is suffering from malice in facts as well as malic in law.

VI.        Interpretation of Clause (1) of Article 200 of the Constitution

87.        Article 200 of the Constitution reads as follows:

“Transfer of High Court Judges

        200. (1) The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts.

Explanation.—In this Article, “Judge” does not include a Chief Justice but includes a Judge for the time being acting as Chief Justice of a High Court other than a Judge of the Supreme Court acting as such in pursuance of a request made under paragraph (b) of Article 196.

(2)        Where a Judge is so transferred or is appointed to an office other than that of Judge at a place other than the principal seat of the High Court, he shall, during the period for which he serves as a Judge of the High Court to which he is transferred, or holds such other office, be entitled to such allowances and privileges, in addition to his salary, as the President may, by Order, determine.

(3)        If at any time it is necessary for any reason to increase temporarily the number of Judges of a High Court, the Chief Justice of that Court may require a Judge of any other High Court to attend sittings of the former High Court for such period as may be necessary and, while so attending the sittings of the High Court, the Judge shall have the same power and jurisdiction as a Judge of that High Court:

Provided that a Judge shall not be so required except with his consent and the approval of the President and after consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which he is a Judge.”

(Emphasis laid)

88.        Clause (1) of Article 200 deals with the discretionary powers of the President to transfer a Judge of a High Court from one High Court to another High Court. Clause (2) of Article 200 deals with entitlement of the Transferee Judge to such allowances and privileges, in addition to his salary, as the President may determine, during the period for which he serves as a Judge in the High Court to which he is transferred. Clause (3) of Article 200 deals with the discretionary powers of the Chief Justice of a High Court to require a Judge of any other High Court to attend sittings of the former High Court for such period as may be necessary.

89.        It transpires that Clause (3) of Article 200 has no connection with Clause (1) and Clause (2) of Article 200 and same is independent. However, Clause (1) and Clause (2) of Article 200 are interconnected and both are to be read in conjunction with each other. In fact Clause (2), being subservient to Clause (1), cannot be read in seclusion to Clause (1). For proper interpretation of Clause (1), it has to be read together with Clause (2).

90.        Though the nature of transfer i.e. permanent or temporary has not been mentioned/specified in Clause (1) of Article 200 of the Constitution, however, in the meeting of JCP (for SC) dated 10th February 2025, learned A.G., representing Federation of Pakistan, asserted that the transfer of three Judges to IHC under clause (1) of Article 200 is permanent. The same stance was repeated by the learned A.G. before this Court during his arguments by categorically conveying to this Court on behalf of the Federation of Pakistan that the three Judges have been transferred by the President to the IHC vide impugned notification on permanent basis.

91.        Doctrine of harmonious construction, introduced by the SC of India in 1939 in the case of C.P. and Berar Act, followed in number of cases by the SC of India as well as by this Court, is a principle of statutory interpretation used by the courts to resolve conflicts between two or more laws or provisions, requiring them to be read in a way that gives effect to both, rather than one nullify the other. The goal is to find an interpretation where all provisions can co-exist and work together, avoiding a repugnant outcome by making efforts to reconcile any inconsistencies. The provisions of a statute or law should be considered in their entirety to understand their true meaning and relationship. The interpretation should aim to reconcile the provisions, finding a way for them to work together harmoniously. The main aim of this doctrine is to give effect to all the provisions while maintaining the overall coherence and purpose of law. According to the said doctrine a provision of a statute should not be interpreted or construed in isolation but as a whole, so as to remove any conflict or inconsistency. In the case of Hamza Rashid Khan v. Election Appellate Tribunal17 it has been laid as follows by this Court:

“One of the most celebrated principles of constitutional interpretation is that a Constitution is to be read as an organic whole and its provisions, especially those closely related to each other, are to be harmoniously reconciled instead of making out inconsistencies between them. One constitutional provision cannot, unless expressly so provided, override the other nor can one be so construed as to destroy the other but rather both are to be construed harmoniously, each sustaining the other. The meaning and scope of an obscure provision is to be ascertained in light of that provision which manifests the intent of the constitution makers in unequivocal terms. Because the different parts of a Constitution are linked into a whole, i.e., the Constitution, and are not merely an unconnected bunch of isolated provisions; every provision is related to a systemic plan and contributes to the functioning of an integrated scheme.”

92.        In the case of Kamaluddin Qureshi v. Ali International Co.18 it has been held by this Court as follows:

        “The intention of the law maker is always gathered by reading the statutes as a whole and meanings are given to each and every word of the whole statute by adopting a harmonious construction.“

93.        In the case of Accountant General, Sindh v. Ahmed Ali U. Qureshi19 it has been held as follows by this Court:

        “Whereas this is well settled principle of interpretation of statutes that redundancy cannot be attributed to any provision of the constitution rather in case of any conflict in two provisions, the rule of harmonious interpretation is to be followed.”

93.        In the case of Collector of Sales Tax and Central Excise (Enforcement) v. Messers MEGA TECH (PVT.) LTD.20 It has been held as follows by this Court:

        “It would, however, appear that every word used by the legislature must be given its true meaning and the provisions construed together in a harmonious manner. To our mind, it would not be legal and proper to apply one provision of law in isolation from the other provision as no surplusages or redundancy can be attributed to the legislative organ of the state.”

95.        In the case of the Collector of Customs Karachi v. Messrs NEW ELECTRONICS (PVT.)21 it has been held by this Court as follows:

        “The constitution is to be construed as an organic whole and its various provisions are to be read as a part of one integrated scheme. The widest possible interpretation is to be given to the provisions of the constitution with the object to meet all eventualities. The efforts should be made to construe constitutional provisions in such a way, that it may avert chaos and uncertainty in the country and may foster the smooth functioning.”

96.        In the case of Al-Jehad Trust v. Federation of Pakistan22 it has been held as follows by this Court:

        “The relevant Constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. At this juncture, it may be stated that a written Constitution, is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people; Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court’s efforts should be to construe the same broadly, so that ‘it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context.

        The above principles will have to be kept in view while construing the provisions of the Constitution relating to the appointments/transfers of Judges of the superior Judiciary.”

97.        In the case of Zahoor Textile Mills v. Federation of Pakistan23 it has been held as follows by this Court:

        “The constitution is an organic document, it is to be read as a whole and all efforts should be made to harmonize and to reconcile its various provisions with the object to make them more functional and effective.”

98.        In the case of Salahuddin v. Frontier Sugar Mills and Distillery Ltd.24 it has been held as follows by the SC of India:

        “It is indeed one of the principles of interpretation that the various provisions of a statute should be harmoniously construed so that none is rendered nugatory, but the principle cannot be stretched to placing an entirely artificial and untenable interpretation on one provision, so that another provision may be saved.”

99.        In the case of Shahid Nabi Malik v. Chief Election Commissioner25 it has been held by this Court as follows:

        “It is well-established principle that while interpreting a Constitutional provision it must be remembered that a Constitution unlike a statute cannot be changed or amended frequently. A document of such a basic nature is not merely the imprisonment of past but is also alive to the future aspiration and need of the nation. Therefore, while interpreting a Constitutional document it must be read and considered as a whole to discover the true intention of its framers. It is for these reasons that no redundancy, surplusage, absurdity or inconsistency can be attributed to the framers of the Constitution. The rule of harmonious interpretation provides that the Court while literally interpreting a provision of the Constitution notices apparent inconsistency as a result of such construction with another provision of the Constitution on the same subject; it may not follow the grammatical and literal construction of the words and adopt a construction which would harmonise the two apparently conflicting provisions and make their working purposeful and in accordance with the intention of Legislature.”

100.        The rule of Harmonious Interpretation in case of conflict was stated by the SC of India in the case of M. Pentiah v. Veeramallappa26 as follows.

        “Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.”

101.        In the case of Union of India v. Sankalchand,27 the Indian SC stated the rule of Harmonious Interpretation in the event of incompatibility between the two provisions of the Constitution in these words:–

        “The normal rule of interpretation is that the words used by the Legislature are generally a safe guide to its intention. Lord Ried in Westminster Bank Ltd. v. Zang, 1966 AC 182 observed that “no principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in Act.” Applying such a rule, this Court observed in S. Narayanaswaini v. G. Panneerselvam, AIR 1972 SC 2284 at p. 2290 that ‘here the statute’s meaning is clear and explicit, words cannot be interpolated ‘ What is true of the interpretation of an ordinary statute is not any the less true in the case of Constitutional provisions, and the same rule applies equally to both. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence is the rule of harmonious construction.”

102.        In the case of Padma Ben Banushali and Ors. v. Yogendra Rathore and Ors.28 the following principles were held discernable by the SC of India:

(1)    It is the duty of the courts to avoid a head-on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them.

(2)    The provisions of one section of a statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them.

(3)    It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. That is the essence of the rule of “harmonious construction”.

(4)    The courts have also to keep in mind that an interpretation which reduces one of the provisions as a “dead letter” or “useless lumber” is not harmonious construction.

(5)    To harmonise is not to destroy any statutory provision or to render it otiose.

103.        In the case of British Airways PLC v. Union of India29 it has been held as follows by the SC of India:

        “While interpreting a statute the court should try to sustain its validity and give such meaning to the provisions which advance the object sought to be achieved by the enactment. The court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make its working impossible. It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. The well-known principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. It is the duty of the court to make such construction of a statute which shall suppress the mischief and advance the remedy. While interpreting a statute the courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation.”

104.        While applying the doctrine of harmonious construction when Clause (1) and Clause (2) of the Article 200 of the Constitution are interpreted and read in conjunction with each other, it provide that in exercise of his discretion, the President may transfer a Judge of a High Court from one High Court to another High Court for a period i.e. tenure and during the period for which the Transferee Judge serves as a Judge of the High Court to which he is transferred, he is entitled to such allowances as privileges, in addition to his salary as determined by the President.

105.        The word “Period” has been defined in the Concise Oxford English Dictionary (Eleventh Edition, Revised) as follows:

“A length or portion of time”

It has been defined in the CHAMBERS 21st CENTURY DICTIONARY as follows:

“A portion of time. Any long interval of geological time“

It has been defined in Webster COMPREHENSIVE Dictionary (Encyclopedic Edition) as follows:

        “A definite portion of time marked and defined by some recurring event or phenomena. A lapse of time; a series of years; an age; era; also, a stage of life. The concluding limit of any sequence of years, events, acts, or phenomena; termination.”

It has been defined in the Oxford Advanced Learner’s Dictionary 10th Edition as follows:

“Length of time“

106.        In the CORPUS JURIS SECUNDAM by FRANCIS J. LUDES and HEROLD J. GILBERT (Volume LXX) the word “Period” has been held synonymous with “term”.

107.        In the LAW DICTIONARY WITH PRONOUNCIATIONS (Second/1948 Edition) by JAMES A. BALLENTINE the word “Period” has been defined as follows:

        “The word has its etymological meaning, but it also has a distinctive signification according to the subject with which it may be used in connection. It may mean any portion of complete time, from a thousand years, or less, to the period of a day.”

108.        In the Black’s Law Dictionary, Second Edition (Pdf) the word “period” has been defined as follows:

        “Any point, space, or division of time. The word “Period” has its etymological meaning, but it also has a distinctive signification, according to the subject with which it may be used in connection. It may mean any portion of complete time, from a thousand years or less to the period of a day.“

109.        Clause 25 of the PRESIDENT’S ORDER NO.3 OF 1997 (PART IV) MISCELLANEOUS reads as follows:

        “Transfer allowance. —-Where a Judge of a High Court is transferred from one High Court to another or from the principal seat of a High Court to a Bench of that Court, or is appointed to an office other than that of Judge at a place other than the principle seat of the High Court, he shall, during the period for which he serves as a Judge of a High Court, or at the Bench, to which he is transferred, or holds such other office, be entitled, in addition to his salary, to a monthly allowance of ten thousands rupees.”

(Emphasis Laid)

        The above clause also clarifies that transfer of a Judge from one High Court to another High Court has to be for a certain period and during the period for which the Transferee Judge serves as a Judge of a High Court to which he is transferred, he shall be entitled to a monthly allowance of Rs.10,000/-, in addition to his salary.

110.        Article 195 of the Constitution reads as follows:

        “A Judge of a High Court shall hold office until he attains the age of sixty-two years, unless he sooner resigns or is removed from office in accordance with the Constitution.”

The above Article provides that office of a Judge of the High Court shall fall vacant on his attaining the age of sixty two years or when he resigns or is removed from office in accordance with the Constitution. This Article or any other Article of the Constitution does not envisage that the office of a Judge of the High Court shall fall vacant on his transfer to another High Court under Clause (1) of Article 200.

111.        Keeping in view the doctrine of harmonious construction, when Clause (1) and Clause (2) of Article 200 are read with Clause 25 of the PRESIDENT’S ORDER No. 3 of 1997 and Article 195 of the Constitution, it transpires that transfer of a Judge of High Court from one High Court to another High Court by the President, in exercise of his discretion under Clause (1) of Article 200 of the Constitution, cannot be permanent and it has to be temporary i.e. for a period/term.

112.        In view of all the above, it is concluded that transfer of three Judges from LHC, SHC and BHC to IHC on permanent basis vide impugned notification has arbitrarily been made by the President in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution and same is declared ultra vires the Constitution.

VII.        Effects of the Impugned Notification:

113.        Preamble of the Constitution (Article 2A/The Objectives Resolution) inter alia mandates that the independence of the judiciary shall be fully secured but issuance of the impugned notification by the President arbitrarily in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution for permanent transfer of three Judges from LHC, SHC and BHC to IHC has given a serious blow to the independence of judiciary.

114.        The permanent transfer of three Judges from LHC, SHC and BHC to IHC by the President under Clause (1) of Article 200 vide impugned notification has offended Article 175A of the Constitution and has made the same redundant.

115.        Due to issuance of the impugned notification by the President in wrong exercise of discretion, a ripple has been caused in the comity of Judges and the turbulence created in IHC has seriously affected the working relationship amongst the Judges of IHC which has consequently affected the smooth working and disposal of IHC making the litigants to suffer at large.

116.        The issuance of impugned notification in wrong exercise of discretion by the President has frustrated the legitimate expectancy of the sitting Judges of IHC, the Judges senior to Sardar Muhammad Sarfraz Dogar J. in LHC, the Judges senior to Khadim Hussain Soomro J. in SHC and the Judges senior to Muhammad Asif J. in BHC with regard to their future prospects.

117.        Permanent transfer of three Judges from LHC, SHC and BHC to IHC by the President arbitrarily and in wrong exercise of discretion is violative of Article 4 of the Constitution as the senior Judges of LHC, SHC, BHC and IHC have not been dealt with in accordance with law.

118.        In absence of any objective criteria, arbitrary selection of Sardar Muhammad Sarfraz Dogar, J. (at Sl. No.15 of the seniority list of LHC), selection of Khadim Hussain Soomro, J. (at Sl. No.20 of the seniority list of SHC) and selection of Muhammad Asif, Additional Judge of BHC by the President for their transfer to IHC is violative of Article 25 of the Constitution as all the senior Judges in LHC, SHC, BHC and IHC have been discriminated.

VIII.        Fresh Oath and Seniority

119.        According to the settled principles, if a case can be decided on other or narrower grounds, the court will abstain from deciding the Constitutional question. The court will not decide a larger Constitutional question than is necessary for the determination of the case.30 Since we have already declared the impugned notification ultra vires the Constitution after holding that the President has made permanent transfer of the three Judges from LHC, SHC and BHC to IHC under Clause (1) of Article 200 arbitrarily and in wrong exercise of discretion, therefore, while deciding the instant CPs, we are not dilating upon issues of taking fresh oath by the Transferee Judges or their seniority in IHC and the said issues will be dilated upon in an appropriate case. However, it is observed that while turning down the representation of the five sitting Judges of IHC with regard to their grievance of alteration of their list of seniority/issuance of seniority list dated 3rd February 2024, the then CJ IHC has wrongly relied upon the case of SC Advocate on Record Association v. Union of India as in India there is unified seniority of the Judges of all the High Courts of India whereas in Pakistan High Courts of all the Provinces and IHC have separate seniority lists of their Judges. Further, the cases of Justice Muhammad Farrukh Irfan Khan v. Federation of Pakistan and Muhammad Aslam Awan Advocate Supreme Court v. Federation of Pakistan, relied upon by the then CJ IHC were distinguishable.

120.        Before parting with the judgment, it is reiterated that the rule of law and strict adherence to the Constitution by all the organs of the State and the institutions attached therewith is the key to prosperity of Pakistan and promotion of national interest. Further, the executive orders must be within the scope of the Constitution and same should not be arbitrary and capricious. Short term gains achieved by violating the Constitution will always undermine the nation’s long term interests in stability, legitimacy and the rule of law.

Sd/-            

Naeem Akhter Afghan, J

I concur with an additional note.

Sd/-            

Shakeel Ahmad, J

1. “Treatise on constitutional limitations” by Cooley pages 159 to 186

“Constitutional Law of India” Vol-I by H.M. Seervai, pages 260 to 262

“Fundamental Law of Pakistan” by the late Mr. A.K. Brohi, pages 562 to 592

“Judicial Review of Public Actions” Vol-I by Mr. Justice Fazal Karim, pages 488 to 492

“Lahore Development Authority v. Imrana Tiwana (2015 SCMR 1739)”

2. PLD 2009 SC 879

3. The Constitution (Eighteenth Amdt.) Act 2010 (10 of 2010)

4. The Constitution (Twenty-Sixth Amdt.) Act 2024 (26 of 2024)

5. AIR 1994 SC 268

6. PLD 2019 SC 509

7. 2014 SCMR 128

8. PLD 1996 SC 324

9. PLD 2009 SC 879

10. AIR 1995 SC 1403

11. (2007) SCC 184

12. AIR 2007 SC 8

13. (PLD 2015 SC 401)

14. Nadeem Ahmed v Federation of Pakistan PLD 2010 SC 1165)

15. PLD 2021 SC 1

2017 SCMR 1249

PLD 1974 SC 151

PLD 1969 SC 14

PLD 1968 SC 313

PLD 1965 SC 671

AIR 203 SC 1941

16. Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324)

17. PLD 2024 SC 1028

18. 2009 CLD 784 (Supreme Court of Pakistan)

19. PLD 2008 SC 522

20. 2005 SCMR 1166

21. PLD 1994 SC 363

22. PLD 1996 SC 324

23. PLD 1999 SC 880

24. PLD 1975 SC 244

25. PLD 1997 SC 32

26. AIR 1961 SC 1107

27. AIR 1977 SC 2328

28. AIR 2006 SC 2167

29. AIR 2002 SC 391

30. Lahore Development Authority v. Imrana Tiwana (2015 SCMR 1739)