The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Present: Sajjad Ali Shah, C.J., Ajmal Mian, Fazal Ilahi Khan,

Manzoor Hussain Sial and Mir Hazar Khan Khoso, JJ

AL-JEHAD TRUST through

Raeesul Mujahidden Habib-ul-Wahabb-ul-Khairi

And others —– Petitioners

Versus

FEDERATION OF PAKISTAN and others —- Respondents

Constitutional Petition No. 29 and Civil Appeal No. 805 of 1995, decided on 24^th March, 1996.

(On appeal from the judgment dated 4-9-1994 of the Lahore High Court, Lahore in Writ Petition no. 875 of 1994)

(a) Constitution of Pakistan (1973) —

Our conclusions and directions in nutshell are as under:-

(i)         The words “after conclusion” employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.

(ii)        That if the President/Executive appoints a candidate found to the unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution.

(iii)       That the permanent vacancies occurring in the offices of Chief Justice and Judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.

(iv)       That no ad hoc Judge can be appointed in the Supreme Court while permanent vacancies exist.

(v)        That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.

(vi)       An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of Constitution and. Therefore, mandatory Constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in case the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.

(vii)      That Additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while they are acting as Additional Judges, acquire legitimate expectancy and they are entitled to be considered for permanent appointment upon the expiry of their period of appointment as Additional Judges and they are entitled to be appointed as such if they are recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan in the absence of string valid reason/reasons to be recorded by the President/Executive.

(viii)      That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203-C of the Constitution without his consent is violative of Article 209, which guarantees the tenure of office. Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the Framers of the Constitution, the same shall prevail and, hence, such an appointment will be void.

(ix)       That transfer of a Judge of one High Court to another High Court can only be made in the public interest and not as a punishment.

(x)        That the requirement of 10 years’ practice under Article 193(2)(a) of the Constitutional relates to the experience/practice at the Bar and not simpliciter the period of enrolment.

(xi)       That the simipliciter political affiliation of a candidate for judgeship of the superior Courts may not be a disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan.

(xii)      That it is not desirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court in view of clear adverse observation of this Court in the case of Abrar Hassan v. Government of Pakistan and others PLD 1976 SC 315 at 342.

(xiii)      That since consultation for the appointment/confirmation of a Judge of a Superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid.

In view of what is stated above, we direct:

            (a)        That permanent Chief Justices should be appointed in terms of the above conclusion No. (iii) in the High Courts where there is no permanent incumbent of the office of the Chief Justice.

            (b)        That the cases of appellants Nos. 3 to 7 in Civil Appeal No. 805 of 1995 (i.e. Additional Judges who were dropped) shall be processed and considered for their permanent appointment by the permanent Chief Justice within one month from the date of assumption of office by him as such.

            (c)        That appropriate action be initiated for filling in permanent vacancies of Judges in terms of above conclusion No. (iii).

            (d)        That ad hoc Judges working at present in the Supreme Court either be confirmed against permanent vacancies in terms of Article 177 of the Constitution within the sanctioned strength or they should be sent back to their respective High Courts in view of above conclusion No. (iv).

            (e)        That the cases of the appointees of theFederal Shariat Courtbe processed and the same be brought in line with the above conclusion No. (viii); and

            (f)         That upon the appointment of the permanent Chief Justices in the High Courts where there is no permanent incumbent or where there are permanent incumbents already, they shall process the cases of the High Courts Judges in terms of the above declaration No. 13 within one month from the date of this order or within one month from the date of time and to take action for regularizing the appointments/confirmation of the Judges recently appointed/confirmed inter alia of respondents Nos. 7 to 28 in Civil Appeal No. 805/95 in the light of this short order. In like manner, the Chief Justice of Pakistan will take appropriate action for recalling permanent Judges of the Supreme Court from the High Courts where they are performing functions as Acting Chief Justices and also shall consider desirability of continuation or not of appointment in the Supreme Court of Ad Hoc/Acting Judges.

            Resultantly, the direct petition and the appeal captioned above are allowed in the terms and to the extent indicated above. [pp. 364, 365 366 and 367] A,B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,Q,R,S,T,U,V,W,X,Y,Z