' GULZAR AHMED; J.---This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the Sindh High Court Bar Association through its Honorary Secretary Mr. Munir-ur-Rehman with the following prayers:
(i) A writ of quo-warranto be issued against the Respondents No,3,4 & 5 as under what authority they have assumed the offices of the Judge of the Sindh High Court.
(ii) That this Hon'ble Court be pleased to declare the appointment of Justice Bin Yamin and as permanent Judge the extension of the judicial tenure of Justice Syed Pir Ali Shah and Justice Arshad Noor Khan as additional Judges of the High Court of Sindh are unlawful, ultra vires the Constitution, mala fide and of no legal consequence.
(iii) That in the alternative and without prejudice to the above reliefs, this Hon'ble Court may be pleased to suspend the operation of impugned Notifications.
(iv) A writ of prohibition restraining the Respondents No.1 & 2 from appointing or elevating any person as Judge of this Hon'ble Court till decision of this petition.
(v) To direct the Ministry of Law, Government of Pakistan to place the entire record of proceedings of consultation before this Hon'ble Court regarding appointment of Judges made on 12th December 2008.
(vi) That this Hon'ble Court be pleased to grant such other relief as may be deemed necessary and just in the circumstances of the case.
(vii) (vii) That this Hon'ble Court be pleased to award costs of the petition.
2. The respondent Na.1 in the petition is Federation of Pakistan through Secretary Ministry of Law and Justice, respondent No,2 is the Province of Sindh through Chief Secretary while respondent Nos.3, 4 & 5 are the Judges of this Court, in respect of whom this petition has been filed with the prayer as noted above.
3. By the notification dated 14.1.2007, the President of Pakistan under Article .197 of the Constitution read with Provisional Constitutional Order No,1 of 2007 and Oath of Office (Judges) Order, 2007 appointed, besides others, the respondent Nos.3, 4 & as Additional Judges of this Court for a period of one year. While their term as Additional Judges was expiring, the Chief Justice of this Court processed his recommendation for their confirmation or otherwise as Judge of this. Court.
Ultimately two notifications dated 12-12-2008 were issued. By one of the notification, the respondent No,3 namely Mr.Justice Bin Yamin was appointed as a Judge of this Court and by the other notification the tenure of respondents 4 & 5 namely Mr. Justice Syed Pir Ali Shah and Mr. Justice Arshad Noor Khan as Additional Judges of this court was extended for a period of six months. Both notifications have been impugned by the petitioner in this petition to the extent of respondents 3 to 5.
4. Initially this petition was being heard by a Division Bench of this Court comprising of the Chief Justice and a companion Judge sitting with him. On 6-3-2009 petitioner's counsel requested the Division Bench for constitution of a larger bench upon which he was directed to submit a ' proper application to the Registrar of the Court. On 1-4-2009, the Chief Justice passed order constituting a larger bench for hearing of this petition.
5. During the hearing of this petition the petitioner's counsel made a statement that in view of the fact that Mi. Justice Iftikhar Muhammad Chaudhary, the Hon'ble Chief Justice of Pakistan has been restored to his office, he does not press prayer (iv), which may be dropped from the petition. M/s. Khalid Anwar, Abdul Hafeez Lakho and Qazi Faez Isa senior Advocates were appointed as. Amicus Curiae to assist the Court in dealing with the intricate and substantial question of interpretation of constitutional law involved in the matter. The Attorney General of Pakistan and the Advocate General Sindh have already been issued notices as is required by order XXVII A, C.P.C.
6. The petitioner had filed applications seeking directions to the respondent No,1 and the Registrar of this Court to place before this Court entire record of consultation proceedings regarding respondents Nos. 3, 4 & 5. Such applications of the petitioner were disposed of by directing the respondent No,1 to make available such record for the examination of the Court and that such record should be kept with the learned Attorney General/Deputy Attorney General to enable the Court to examine the same, if deemed necessary.
7. At the outset, learned Advocate General, Sindh raised two preliminary objections; one of which was that larger bench has not been constituted in accordance with Rule 12 of Sindh Chief Court Rules (AS) and secondly, the petition is not maintainable. These objections were raised by the learned A.G.Sindh on 14.4.2009 and it was ordered that such objections will be heard and decided after hearing all the learned counsel on the main petition at Katcha Peshi stage. On 21.4.2009, learned A.G. Sindh informed the Court that respondent No,2 namely Province of Sindh has appointed Mr. Aziz A. Munshi, Advocate to represent it in the matter, who being not present in court, at the request of learned A.G. Sindh matter was adjourned. Mr. Nazar Akbar, learned Deputy Attorney General made available to the Court, the record in sealed cover of recommendations in respect of respondents No,3 to 5. The sealed cover was opened in the Chamber of Hon'ble Senior Puisne Judge in the presence of all the Members of the Bench, when Mr. Rasheed A. Rizvi, Advocate for the petitioner, Mr. Aziz A. Munshi, Advocate for respondent No,2, Mr. Yawar Farooqui, Advocate for respondent No,4, Mr. Javed Alam, Advocate for respondent No,5 and M/s. Abdul Hafeez Lakho and Qazi Faez Isa, Amicus Curiae were also in attendance. In the sealed cover three documents were found namely:
(i) The recommendation letter of the Chief Justice of Sindh High Court, addressed to the Governor of the Province of Sindh;
(ii) The recommendation letter of the Governor of the Province of Sindh addressed to the Law Secretary, Government of Pakistan, Islamabad; and
(iii) The recommendation letter of the Chief Justice of Pakistan addressed to the Secretary Law, Government of Pakistan, Islamabad.
8. The cover was then sealed without examining the contents of the three documents and such sealed cover was handed over to the Nazir of this Court for its safe custody in lock and key, with direction to produce the same if their contents are to be examined. Pursuant to this exercise, following question was framed by the Court on which counsel for the parties and Amicus Curiae were called upon to make their submissions: "Whether in the matter of recommendation, extension, confirmation or otherwise of respondents 3 to 5, there was consultation by and between the constitutional consultees within the contemplation of Articles 193 and 197 of the Constitution of Islamic Republic of Pakistan, 1973, as expounded by Honourable Supreme Court of Pakistan in the cases of Al-Jehad Trust (PLD 1996 SC 324), Malik Asad Ali (PLD 1998 SC 161), Ghulam Hyder Lakho (PLD 2000 SC 178) and Supreme Court Bar Association (PLD 2002 SC 939), respectively."
9. Though the learned A.G.Sindh, who appeared for respondent No,2 and also on notice under Order XXVII-A CPC, has raised objections regarding constitution of bench and on the maintainability of the petition but subsequently as Mr. Aziz A. Munshi, Advocate has appeared for respondent No,2, he did not raise the first objection but stated that in his arguments he will raise the question regarding maintainability of the petition. However, as learned A.G.Sindh has raised objection regarding constitution of the bench, I deem it necessary to address the same in the first instance.
10. The precise objection of the learned Advocate General was that Sub-rule (2) of Rule 12 of the Sindh Chief Court Rules (AS) requires one or both referring Judges to sit as Member of the full bench and it being not so, the full bench was not properly constituted. Mr. Rasheed A. Rizvi, has, however, contended that the order dated 1-4-2009, by which the full bench was constituted by the Chief Justice, was not a judicial order but was an administrative order and in any case the Rules referred to by learned Advocate General has no application to this Court, rather High Court Rules and Orders as applicable to the Lahore High Court apply to the Sindh High Court. Mr. Yawar Farooqui, learned counsel for respondent No,4 has made an express statement that he has no objection to the constitution of the full bench. The question as to whether the Sindh Chief Court Rules (AS) are applicable or not to this Court was addressed by a simple statement by a Division Bench of this Court in the case of MESSRS MUQTADA KHAN IQTADA KHAN V. MST.ALLAH RAKHI BEGUM (PLD 1972 Karachi 471), that Sindh Chief Court Rules (AS) do not apply to this court. Besides Sub-rule
(2) of Rule 12 make reference to Section 12 of the Sindh Court Act, 1926. Incidentally, the Sindh Court Act, 1926 was repealed by the Section 28 of Punjab/Sindh/NWFP/Balochistan Civil Courts Ordinance, 1962 except Section 8 of it in respect of district of Karachi. Section 8 of the said Act provides that the Chief Court shall be the highest civil court of appeal and revision and the highest Court of criminal appeal and revision for Sindh and the principal civil Court of original jurisdiction for the civil district of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi. This provision has nothing to do with the constitution of the bench by Chief Justice. To the extent the objection raised by learned Advocate-General on the basis of Sub-rule (2) of Rule 12 of Sindh Chief Court Rules (AS) the same being not applicable to this Court arid Sindh Court Act, 1926 except its Section 8 having been repealed, the objection of learned Advocate General has no force and the same is rejected.
11. It may, however, be noted that High Court Rules and Orders are being applied in exercise of appellate jurisdiction of this Court as is reflected from the judgments of this Court in the cases of THE STATE v. MUHAMMAD ASHRAF (PLD 1961 (WP) Karachi 452) and ABDUL AZIZ v. ABDUL WAHAB (PLD 1964 (WP) Karachi 630) (Full Bench). This Court has also made certain amendments in the High Court Rules and Orders and one of such amendments was made by Sindh Amendment vide Correction Slip 188, published in Gazette of Sindh Part-IV-A dated 23.10.1975. The origin of application of the High Court Rules and Orders to this Court seems to have its source upon constitution of the High Court of West Pakistan through High Court of West Pakistan (Establishment) Order 1955 with its principal seat at Lahore and benches at Karachi and Peshawar and circuit courts in other places of Province of West Pakistan. High Court Rules and Orders which were applicable to High Court of Judicature at Lahore apparently came to be applied to the West Pakistan High Court bench at Karachi more so for the reason that through Order of 1955, the Chief Court of Sindh ceased to exist. This was further fortified by repealing of the Sindh Court Act, 1926 (except its Section 8) by the Civil Court Ordinance, 1962. Though through subsequent High Courts (Establishment) Order, 1970 the High Court of West Pakistan ceased to exist and in its place three High Courts were established namely High Court for the Province of NWFP to be called the Peshawar High Court with its principal seat at Peshawar, High Court for the Province of Punjab and Islamabad territory to be called Lahore High Court with its principal seat at Lahore and High Court for the Provinces of Balochistan and Sindh to be called Sindh and Balochistan High Court with its principal seat at Karachi and by the Balochistan and Sindh (High Courts) Order, 1976 the High Courts of Sindh and Balochistan were separated and High Court for the Province of Balochistan to be called High Court of Balochistan with its principal seat at Quetta and High Court for the Province of Sindh to be called High Court of Sindh with its principal seat at Karachi were established but no change as to the application of High Court Rules and Orders to this Court was brought nor any other rules seem to have been made by the Sindh High Court in the terms provided in Article 202 of the Constitution for regulating the practice and procedure of the Court for dealing with its appellate side work.
12. Rule 6 of Chapter 3, Part-A High Court Rules and Orders Volume-V provides that a full bench shall ordinarily be constituted of three judges, but may be constituted of more than three judges in pursuance of an order in writing by the Chief Justice. Rule 1 of Chapter 10, part-A of High Court Rules and Orders deals with administrative business and its second proviso lays down that those matters which are the executive concern of the Chief Justice, namely the constitution of benches and the appointment of control of High Court establishment shall be dealt with in accordance with such instructions as may from time to time be issued by the Chief Justice. The above mentioned two rules give ample power to the Chief Justice to constitute bench including the full bench without any condition and that it is not necessary for the Chief Justice to sit as a member of the full bench constituted by him.
13. The next question that may be adverted to at this stage is with regard to the objection pressed by learned Attorney General, Mr. Aziz A. Munshi, and Mr. Yawar Farooqui that a Civil Petition No,9 of 2009 under Article 184(3) of the Constitution of Islamic Republic of Pakistan filed by the petitioner is pending in the Hon'ble Supreme Court of Pakistan, in which similar question of facts and law are involved as in the present petition and propriety demands that Hon'ble Supreme Court be allowed to decide the said petition first and thereafter this petition may be taken up for hearing by this Court. Mr. Abdul Hafeez Lakho, learned Amicus Curiae has, however, submitted that question or questions be formulated by this Court and same be referred for the decision of Hon'ble Supreme Court. Mr. Kimlid Anwar, learned Amicus Curiae has contended that there, is no need for this Court to go into the question as to whether the Chief Justice of Pakistan, who has exercised the power of a consultee under Article 193 of the Constitution, was a de facto or de jure Chief Justice of Pakistan and that such question be left to be determined by Hon'ble Supreme Court and that so far the present petition is concerned, this Court is fully competent to hear and decide the same. Mr. Rasheed A. Rizvi, learned counsel for the petitioner has submitted that Constitutional Petition No,9 of 2009 filed by the petitioner in Hon'ble Supreme Court of Pakistan is altogether for different reliefs and in any case no relief of quo-warranto has been sought in it and that choice of the forum lies with the petitioner and in this respect relied upon the case of MISS BENAZIR BHUTTO v. FEDERATION OF PAKISTAN AND ANOTHER (PLD 1988 SC 416) and contended that the petition may be heard and decided by this Court.
14. As the submission is based upon the Constitutional Petition No,9 of 2009, filed in the Hon'ble Supreme Court of Pakistan by the petitioner, I have gone through its contents and find that it is based upon interpretation of notification issued by the President of Pakistan relating to the tenure of appointment as Additional Judges of. Mr. Justice Zafar Ahmed Khan Sherwani and Mr. Justice Abdul Rasheed Kalwar and notification of extension of their tenure as Additional Judges and also involves, as a matter of fact, question of inala fides of the respondent No,1 and about the competency and powers of Federal Law Secretary and also about the weight of opinion of the Chief Justice of Sindh High Court in the matter of making appointments of Additional Judges, recommending extension of their tenure or confirming them as permanent Judges. The relief sought in the said petition is as follows:
(i) to declare that the Respondents Nos.3 and 4 are and continue to be judges of the High Court of Sindh and would continue as Additional Judges till 25th August 2010 and that their term of appointment has not expired as opined by Justice Abdul Hameed Dogar;
(ii) to declare and direct Registrar of the High Court of Sindh that the Respondents should be assigned regular work as judges of the Sindh High Court;
(iii) to issue writ of mandamous directing the respondents to act in accordance with Constitution and the Law in the matter of appointment of Judges, in particular, the Respondents No,3 and 4 further directing the continuance of Respondents No,3 and 4 to perform functions and duties as Judges of the High Court of Sindh unless justiciable reasons are placed on record to ignore the recommendations by constitutional consultees asked through office memorandum dated 13th March 2009;
(iv) to issue directions to Respondent No,1 and the Registrar of the High Court of Sindh to place the entire record of proceedings of consultation leading to issuance of notification dated 12th March, 2009 before this Hon'ble Court;
(v) to issue a writ of mandamus to appoint the Respondents Nos.3 and 4 as permanent judges of the High Court of Sindh under Article 193 of the Constitution of the Islamic Republic of Pakistan;
(vi) to grant costs of the petition; and
(vii) to grant any other relief or reliefs as may be considered appropriate and just in the circumstances of the case. On the other hand, the petitioner in the present petition has sought the following relief:
(i) A writ of quo-warranto be issued against the Respondents no.3,4 & 5 as under what authority they have assumed the offices of the Judge of the Sindh High Court.
(ii) That this Hon'ble Court be pleased to declare the appointment of Justice Bin Yamin and as permanent Judge the extension of the judicial tenure of Justice Syed Pir Ali Shah and Justice Arshad Noor Khan as additional Judges of the High Court of Sindh are unlawful, ultra vires the Constitution, mala fide and of no legal consequence.
(iii) That in the alternative and without prejudice to the above reliefs, this Hon'ble Court may be pleased to suspend the operation of impugned Notifications.
(iv) A writ of prohibition restraining the Respondents Nos.1 & 2 from appointing or elevating any person as Judge of this Hon'ble Court till decision of this petition.
(v) To direct the Ministry of Law, Government of Pakistan to place the entire record of proceedings of consultation before this Hon'ble Court regarding appointment of Judges made on 12th December 2008.
(vi That this Hon'ble Court be pleased to grant such other relief as may be deemed necessary and just in the circumstances of the case.
(vii) That this Hon'ble Court be pleased to award costs of the petition.
15. It may be noted that the relief claimed in para (iv) above, was dropped by the learned counsel for the petitioner during the course of hearing of this petition. Putting contents of both the petitions in juxtaposition, it will become evident that Constitutional Petition filed in the Hon'ble Supreme Court is in the nature of issuing to writ of mandamus or for the enforcement of fundamental rights, whereas in the Constitutional Petition in this court the relief claimed is that of quowarranto. The rule for issuing a writ of mandamus/enforcement of fundamental rights and for issuing writ of quo- warranto are governed by two different independent sets of law, in which there is no similarity and the ultimate decision of the Court, in case writs are issued, produces altogether different results. In issuing of writ of mandamut/enforcement of fundamental rights, the Court directs the official functionaries to do and perform what law requires them to do and perform and in case of issuing of writ of quo-warranto the person holding or purporting to hold public office ceases to hold office for it being without authority of law. Thus the end-result is to be measured for exercise of judicial power by the Court and not merely its form or its apparent look. It being different, perhaps the rule of propriety as canvassed will not be attracted.
16. Having said that the end result of the petition before Hon'ble Supreme Court and the petition before this Court will altogether be different and further parties effected by it are also different and the Constitution by its Article 199(1)(ii) specifically confers powers on the High Court to entertain and decide a petition of quo-warranto, I, earnestly believe that a constitutional duty has been cast upon this Court to decide such matter, which duty ought not to be abdicated for reason that some point either collaterally or directly involved in this petition be also pending adjudication before the Hon'ble Supreme Court in view of clear distinction in the two matters as noted above. This seems more appropriate in doing so, for the added reason that if any of the party is aggrieved by the decision of this Court, it will have remedy of having the decision of this Court examined by the Hon'ble Supreme Court. In the case of Miss Benazir Bhutto (supra), the Hon'ble Supreme Court at page 488 has observed as follows: "The opening words "without prejudice" in Article 184(3) mean only not affecting, saving or excepting and when read with the words following thereafter, "to the provisions of Article 199", the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two forums it wishes to invoke, and if it be the Supreme Court then the power exercisable is subject to the limitation under Article 184(3), that is, that the element of "public importance" must be involved in the enforcement of Fundamental Rights."
17. The next argument that was raised is regarding the competency of this Court to issue writ of quo-warranto against a Judge of the High Court. The learned Attorney General has argued that in the case of ABRAR HASSAN V/S GOVERNMENT OF PAKISTAN & ANOTHER (PLD 1976 SC 315) split decision was given by the Hon'ble Supreme Court on the question as to whether a petition for quo warranto will lie against a Judge of the High Court. He stated that a Judge of High Court being itself a High Court, no writ can be issued by the High Court against High Court and that there is not a single case where the High Court may have taken up the case of its own Judge about his competency to remain as a Judge or not and relying upon the case of MALIK ASAD ALI V/S FEDERATION OF PAKISTAN (PLD 1998 SC 161) stated that Supreme Court has been conferred superior jurisdiction under Articles 187 & 190 of the Constitution which powers are not available to High Court under Article 199 of the Constitution. Mr. Yawar Farooqui, learned counsel for respondent No,4 has contended that a petition for quo-warranto will not lie against respondent No,4 who fulfils the qualification of being appointed as Additional Judge and that there has been no allegation against him of corruption during his tenure of 31 years service in lower judiciary and that the remarks made on his ACR by Mr. Justice Syed Saeed Ashhad, the .Then Chief Justice of this Court, requiring improvement, such remarks were also removed from the service record of respondent No,4 before his elevation as Additional Judge of this court. Mr. Abdul Hafeez Lakho, learned Amicus Curiae also contended that High Court does not possess power to issue writ of quo-warranto against a Judge of its own court. M/s Khalid Anwar and Qazi Faez Issa, the other two learned Amici Curiae contended that this Court is fully competent to decide this petition. Mr. Rasheed A. Rizvi, learned counsel for the petitioner has contended that petition of quowarranto lies against a Judge of High Court and court will also be competent to issue such writ if it is satisfied that there was no consultative process in respect of appointment of Judges as laid down in Al-Jehad Trust's case.
18. Apparently, there was difference of opinion amongst the Hon'ble Judges of Supreme Court in the case of Abrar Hassan (supra) on the question as to whether a petition of quo-warranto will lie against a Judge of High Court or not. The case of Abrar Hassan was decided by the four Member bench of Hon'ble Supreme Court and on this point, the Court was equally divided. The case of Abrar Hassan subsequently came to be considered by ten Member Bench of the Hon'ble Supreme Court of Pakistan in the case of Malik Asad Ali (supra) where the observation of the Court on this point starts from para. 75 which is as follows: "75. It is, therefore, quite clear' that there was unanimity in the views of all the four learned Members of Bench in Abrar Hassan's case that the appointment of a Judge of superior Court could be brought under challenge before a Court. However, there was divergence of opinion on the question of nature of proceedings which could be filed to challenge such appointment. Muhammad Yaqub Ali, C.J. And Anwarul Hach J. Were of the view that a direct proceeding to challenge the appointment of a Judge of superior court under Article 199 of 'the Constitution would be barred in view of the provision of clause (5) of Article .199, and therefore, such an appointment could only be challenged collaterally in a properly filed proceedings. The other two learned Members of the Bench Salahuddin Ahmed and Muhammad Gul, JJ. On the contrary held the view that such appointment could be challenged directly only through a petition under Article 199(1)(b)(ii) of the Constitution and not collaterally in other proceedings. This divergence of opinion amongst the learned Judges of the Bench in Abrar Hassan's case was the result of different interpretation of clause (5) of Article 199 of the Constitution by them.
' Muhammad Yaqub Ali, C.J. And Anwarul, Haq, J. Held that the `Judge' and 'High Court' are synonymous and interchangeable, and therefore, issue of a writ to a Judge would amount to issuance of writ to High Court which is prohibited by Article 199(5) of the Constitution. The other two learned Members of the Bench, Salahuddin Ahmed and Muhammad Gul, JJ.While disagreeing with the above interpretation, held that a Judge and the Court are not always synonymous. According to them, the Judge is properly identified with the Court when it does something in exercise of the jurisdiction vested in it as a Court. Otherwise, its personal identity remains distinct from the Court.
The point has been aptly illustrated by the learned Judges (Salahuddin Ahmed, J and Muhammad Gul, J. By citing an example where the Judge unlawfully confines his domestic servant at his house and when he convicts and sentences him to jail in a case brought before him as a Judge of the Court. In the former case, the action of the Judge will be amenable to the jurisdiction of High Court under Article 199 of the Constitution while in the latter case, it cannot be challenged under Article 199 ibid. Once again there appears to be unanimity in the views of all the learned four Members of the Bench in Abrar Hassan's case, that a Judge of a superior Court in his personal and individual capacity is not immune from the process of Court under Article 199 of the Constitution and that this immunity extends only to the acts and orders passed as a Judge of the Court or a member of the Court.
76. The dominant consideration which persuaded Muhammad Yaqub Ali, C.J. And with which Anwarul Haq, J. Agreed, were stated in the opinion of Muhammad Yaqub Ali, C.J. As follows:- ' A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support, of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants under Article 199 as without, lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection one should bear in mind large number of decisions given by High Court in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation Authorities, Custodian of Evacuee Property, Settlement Authorities, Revenue Board etc. To which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Courts to quash, under Article 199, judgments, decrees and orders passed by other Judges of his Court.. I do not see how such a result can be avoided if we exclude 'Judges' from the term High Court and Supreme Court in clause (5) of Article 199.
77. With greatest respect, we may point out that the judgments delivered by a Judge or group of Judges are the functions which identify the Judge or Judges with the Court and therefore, to that extent the bar contained in clause (5) of Article 1.99. Of the Constitution is fully attracted. The conclusions of Salahuddin Ahmed and Muhammad Gul, JJ. In Abrar Hassan's case, supra, were also not different. What these two learned Members of the bench (Salahuddin Ahmed and Muhammad Gul, JJ.) in Abrar Hassan's case said was, that while the orders passed by a Judge in exercise of the jurisdiction of the Court cannot be called in question under Article 199 of the Constitution, the acts of a Judge performed in his personal capacity did not enjoy this protection.
The difference between a Judge acting as a Court and a Judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a Judge will not be answerable for wrong done by him in his individual capacity. It may be pointed out that by accepting the office of a Judge, a person does not lose his individual identity as an ordinary citizen.
Therefore, while action taken or orders passed by him in the former capacity as a Judge of the Court cannot be brought under challenge, under Article 199 of the Constitution, his action as an ordinary individual will be subject to ordinary law of the land including Article 199 of the Constitution. In this view of the matter, in our humble opinion, the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. In Abrar Hassan's case in respect of the maintainability of a petition seeking information in the nature of quo warranto against a Judge of superior Court seems to be more rational, practical and nearer to the spirit of the provision of the Constitution. A petitioner in a petition filed against a Judge 'of the superior Court seeking information in the nature of quo warranto, does not challenge any action or order of a Judge passed in his capacity as a Judge of the Court or a member of the Court The qualification to hold the office of a Judge is personal to the individual and has nothing to do with his performance of duty as a Court or member of the Court. The qualifications for appointment of Judges of the superior Court are laid down meticulously in the Constitution. To possess the qualifications prescribed under the Constitution is a sine qua non for an individual to hold the office of a Judge of superior Court.
Therefore, when the appointment of a Judge of superior Court is challenged on the ground that he did not possess the qualification prescribed by the Constitution, the relater is not asking the Court to strike down any of his actions which he has performed or is performing as a Judge of the superior Court but asks for examination of his personal qualification to be entitled to hold the office of the Judge of superior Court. Such an exercise, in our humble opinion, does not fall within the mischief of the provision of Article 199(5) of the Constitution. We are, therefore, in no doubt that a petition seeking information in the nature of quo warranto lies against the Judge of a superior Court under Article 199 of the Constitution. We are further of the view that such an attack on the validity of the appointment of a Judge of a superior Court through collateral proceeding is not a proper remedy as firstly, such occasion may or may not arise and secondly, when the appointment of a Judge is attacked collaterally in a proceeding arising from his order, he is not necessarily arrayed as a respondent in the Court and therefore, he cannot be called upon to justify his appointment. It is also to be noted that in a collateral attack, on the validity of the appointment of a Judge, the proceedings are directed against the order passed by him and validity of his appointment is only challenged through a side wind, which is possible only, if the order passed by the Judge is subject to appeal, revision, review or other proceedings before a higher forum.
Therefore, if the law does not permit any appeal or other proceedings against the order passed by a Judge, the occasion to challenge the validity of his appointment in collateral proceedings may not arise at all. For this reason too, we are in respectful agreement with the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ in Abrar Hassan's case that a petition against the Judge of a superior Court seeking information in the nature of quo warranto is maintainable under Article 199 of the Constitution. This view is more rational and has the effect of advancing the remedy and suppressing the mischief."
' This judgment of the Hon'ble Supreme Court clearly states that a petition of quo-warranto in respect of Judge of a superior Court will be maintainable under Article 199 of the Constitution.
19. Having dealt with preliminary matters which were raised before the Court, I, now come to examine the actual question which was framed by the Court for the determination of this case, which is noted in para 8 above.
20. Elaborate arguments were addressed by learned counsel for the parties so also learned Amicus Curiae. I would deal with the arguments, in the first instance, which have relevance to the question framed by, the Court.
21. Learned counsel for the petitioner has contended that in appointments of respondents 3 to 5 as Judge or extension of tenure as Additional Judge through impugned notifications, there was no effective, meaningful, purposive, consensus-oriented consultation as laid down in Al-Jehad Trust's case (the Judges' case) and that in such consultative process, primacy ought to have been given to the recommendations of the Chief Justice of Sindh High Court who otherwise was also a de jure Chief Justice of Sindh High Court while Mr. Justice Abdul Hameed Dogar was merely a de facto Chief Justice of Pakistan.
22. Learned Attorney General on the other hand contended that the process of consultation as' provided in the Constitution was complied with before issuing of notifications regarding respondents 3 to 5. He further ' contended that the President of Pakistan has acted on the recommendations of the Chief Justice of Pakistan who being paterfamilias of the judiciary, his recommendations are not justiciable. He also argued that though the Judges' case requires that there should be consensus between the constitutional consultees for appointment of Judges of superior judiciary but it does not go on to say that there should be unanimity between all the constitutional consultees, as attaining unanimity in human affairs is not always possible. Except for the last mentioned contention of learned Attorney General, similar arguments were advanced by Mr. Aziz A.Munshi and also by Mr. Yawar Farooqui.
23. Mr. Khalid Anwar, the learned Amicus Curiae has contended that the Court has to examine whether the procedure for appointment of Judges in superior judiciary as laid down in the Judges' case was followed before final decision in respect of respondents 3 to 5 was taken and that the matter of procedure is always justiciable and in this regard Court should examine whether the recommendations of Chief Justice of Pakistan reflected that he has made efforts for obtaining consensus as it has to be reflected in his recommendations and all matters regarding the consultative process should be in writing for maintaining transparency and good governance and that the opinion of one consultee has no less importance than of the others and it cannot be rejected without following consensus oriented consultation. He further contended that after the pronouncement in the Judges' case, the word consultation with its definition was added in Article 260 of the Constitution and that such definition has to be given effect. He further contended that the High Court is not a subordinate Court to the Supreme Court nor Supreme Court has supervisory jurisdiction over the High Court, both being creature of Constitution, are independent Courts while the Supreme Court has appellate jurisdiction over the judgments, decrees and order passed by the High Court. The judicial power of Chief Justice of Pakistan is similar to that of other Judges of Supreme Court except that he possesses administrative powers regarding formation of benches and the administration of the Supreme Court. In the matter of appointment of Judges of High Court under Article 193 of the Constitution, the Chief Justice of Pakistan does not sit as appellate judge on the recommendation of Chief Justice of a High Court but performs functions of a constitutional consultee as one of the consultees and all consultees arc equal having no superiority over others.
He also contended that in case of conflict of opinion of Chief Justice of High Court and Chief Justice of Pakistan, it was necessary that such disagreement ought to have been resolved through consultative process in order to make it a consensus oriented exercise. Relying upon the case of SUPREME COURT ON RECORD ADVOCATE ASSOCIATION v. UNION OF INDIA (AIR 1994 SC 268) the learned Counsel contended that if there be conflict of opinion between Chief Justice of a High Court and Chief Justice of Pakistan concerning the appointment of a judge of High Court, for valid reasons to be recorded and communicated to the Chief Justice of Pakistan non-appointment would be permissible. He further contended that conclusion of the consultation should either be 'yes' or 'no' of all the four consultees as provided in the Constitution. Mr. Abdul Hafeez Lakho, the learned Amicus Curiae has also contended that there has to be effective consultation between constitutional consultees and only after such consultation has taken place final decision should be made. Mr. -Qazi Faez Issa, the learned Amicus Curiae contended that the process of consultation for the appointment of a Judge 'or Additional Judge of High court the recommendations of Chief Justice of a High Court should not be considered meaningless rather if the Chief Justice of Pakistan differs with it, the opinion of the Chief Justice of a High Court should be given preference.
24. Learned counsel for the parties as well as the learned Amici Curiae in the course of their arguments extensively read from the various reported judgments of the Supreme Court of Pakistan and Supreme Court of India, while Mr. Yawar Farooqui also relied upon the Halsbury's Law on the point of appointment and transfer of Judges, appointment process of Supreme Court of Canada, appointment of Australian Judges, process of appointment of Judges in United Kingdom, a note on filling up of vacancy of Chief Judge of Malaya and of Philosophy of Law, 2nd Edition by Joel Feinberg and Hyman Gross.
25. To the extent of reference made by Mr. Yawar Farooqui to the process of appointment of Judges of foreign countries except India, the Hon'ble Supreme Court in case of Al-Jehad Trust v.
Federation of Pakistan (PLD 1996 SC 324) (hereinafter to be called Judges' case) at page 478 has dealt with the question as follows: "44. In my view, the system of appointment of Judges obtaining in U.S.A. And U.K. Has no direct bearing on the controversy in issue. Out of deference to the learned counsel, I have quoted certain extracts from the books cited by them. The systems of appointment of Judges in the above two countries are different as compared to our country. The relevant Articles in our Constitution relating to appointments in Judiciary with minor variations have been lifted from the Indian Constitution, 1950, and, therefore, the factum as to how they have been interpreted and acted upon in India is relevant. I have also referred to and quoted the relevant extracts from the relevant judgments of the Indian Supreme Court covering the controversy in issue."
' I, therefore, do not consider it necessary to examine such 'foreign references relied upon by Mr. Yawar Farooqui.
26. In the present, case the Court is concerned with the case of respondents 3 to 5. Respondent No,3 appears to have been appointed as Judge of this Court under Article 193 of the Constitution while respondents 4 & 5 appear to have been given extension of tenure as Additional Judges in terms of Article 197 of the Constitution. The manner of appointment of an Additional Judge under.
Article 197 has been provided to be the same as provided in Article 193 of the Constitution. Article 193 of the Constitution provides for appointment of High Court Judge and its clause (1) says that a Judge of High Court shall be appointed by the President after consultation with the Chief Justice of Pakistan, with the Governor concerned and except where the appointment is that of Chief Justice with the Chief Justice of the High Court. The word "after consultation" has been comprehensively considered by the Hon'ble Supreme Court in the Judges' case. The Judges' case has arisen on the facts which are concisely noted in the case of Mr. Justice Ghulam Haidar Lakho v. Federation of Pakistan (PLD 2000 SC 179) and I consider it necessary to reproduce the same : "2. To understand the present controversy, it is necessary to briefly state here the background of the Judges' case. In the year 1994, the then Federal Government of Pakistan, appointed twenty Additional Judges at a time against the vacancies existing in the Lahore High Court vide notification dated 04.8.1994. The appointments of these twenty Additional Judges were made after consultation with the then Acting Chief Justice of Lahore High Court and the then Chief Justice of Pakistan. Similar appointments of Additional Judges of High Courts were also made in the High Courts of Sindh and Peshawar by the then Federal Government in consultation with the respective Acting Chief Justices of the High Courts and the Chief Justice of Pakistan in 1993, 1994 and 1995. It may be mentioned here .That prior to the appointment of twenty Judges in the Lahore High Court in August, 1994, the Government had declined to confirm Additional Judges of High Courts of Lahore and Sindh, appointed by the previous Government on completion of their period as Additional Judges, which was resented by the members of the bar. The appointment of twenty Judges in the Lahore High Court in August, 1994 in this background was not received well in the public and the legal circles, and were described as politically motivated and not on merits. In this backdrop', Al Jehad Trust, a social organization, headed by Habib-ul-Wahabul-Khairi, a practising lawyer of this Court, filed a direct petition before this Court under Article 184(3) of the Constitution, wherein besides challenging the appointment of an Acting Chief Justice of Pakistan instead of permanent Chief Justice and various other issues relating to appointment; transfer and removal of Judges of the superior Courts were raised. Mr. Habib-ul-Wahab-ul-Khairi also filed a petition bearing No, 875 of 1994 in the Lahore High Court under Article 199 of the Constitution directly challenging the non-confirmation of 8 Additional Judges of High Court and appointment of 20 Additional Judges of the High Court. The above writ petition filed by Al-Jehad Trust through Habib- ul-Wahab-ul-Khairi before the Lahore High Court was heard along with two other similar Writ Petitions Nos.9893 and 10186 of 1994, and these were dismissed by a learned division bench of that Court by judgment dated 4-9-1994. Against the above judgment of the learned Division Bench of the High Court of Lahore, leave was granted in Civil Appeal No,805 of 1995 filed by Al-Jehad Trust.
The above appeal, along with direct Constitutional Petition No,29 of 1995 was heard by a Bench of this Court consisting of five learned Judges for days together and by a detailed judgment dated 20th March, 1996 while interpreting various Articles in the Constitution relating to superior judiciary, it laid down the parameters for appointment, transfer and other matter relating to superior judiciary of Pakistan."
27. After the hearing in Judges' case was concluded, a short order dated 20-3-1996 was passed which is as follows: "2. In these two cases some appointments of Judges in the Superior Judiciary are challenged and called in question on the ground that they have been made in contravention of the procedure and guidelines laid down in the Constitution, and in this context we are called upon to examine in detail the relevant. Articles pertaining to the Judiciary specified in Part VII, of the Constitution to render an authoritative decision on the question of interpretation of such Articles in the light of other co- related Articles.
3. Pakistan is governed by the Constitution of the Islamic Republic of Pakistan, 1973, Preamble of which says that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and independence of Judiciary fully secured. It also provided that the Muslims shall be enabled to ordain their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah. The Preamble is reflection of the Objectives Resolution which is inserted in the Constitution as Article 2A as substantive part of the Constitution by P.O. No,14 of 1985. Article 2 of the Constitution states in unequivocal terms that Islam shall be the State religion of Pakistan. Part 'IX of the Constitution contains Islamic Provision in which Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
The Institution of Judiciary in Islam enjoys the highest respect and this proposition is beyond and dispute. The appointments of Judges and the manner in which they are made have close nexus with independence of. Judiciary.
4. In the provisions relating to the Judicature in the Constitution, Article 175 provides that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law. Sub-Article(2) ,thereof provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Sub-Article (3) provides that the Judiciary shall be separated progressively from the Executive,. Within fourteen years from the commencing day. After expiry of the stipulated period, this Court has given judgment in the case of Government of Sindh v. Sharaf Faridi and others PLD 1994 Supreme Court 105, and has held on the subject of independence of Judiciary as under:- "that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct of indirect, from any quarter for any reason; and That the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature."
' In this judgment this Court has further provided guidelines for financial independence of the Judiciary. The cut-off date of 23'd March, 1996 has been given by this Court to enable the Provincial Governments for final separation of Judiciary from the Executive as envisaged in the judgment mentioned above.
5. We have examined in detail the special characteristics of our present Constitution in conjunction with its historical background and Islamic Provisions while being fully cognizant of the powers of this Court to interpret the Constitution keeping in view the "Doctrine of Trichotomy of Powers", and have heard in detail with utmost patience not only the learned counsel appearing for the parties, but also the most senior counsel as amicus curiae, representatives of the Bar Associations of the Supreme Court and High Courts and the individuals who requested for hearing them on the subject of interpretation of provision of the Constitution relating to the Judiciary. The valuable assistance rendered by all of them is very much appreciated.
6. Article 177 of the Constitution envisages that the Chief Justice of Pakistan shall be appointed by the President, and each, of the other Judges of the Supreme Court shall be appointed by the President after consultation with the Chief Justice. As against this, for appointment of Acting Chief Justice of Pakistan, Article 180 provides that when the office of the Chief Justice of Pakistan is vacant or he is absent or unable to perform the, functions of the office, the President shall appoint the most senior of the other Judges of the Supreme Court to act as the Chief Justice of Pakistan.
We are not going into the question of interpretation of these two provisions in the light of contention that criterion of the most senior Judge in the appointment of Acting Chief Justice be impliedly read in the appointment of the Chief Justice of Pakistan for the reasons firstly that in Constitutional petition No, 29 of 1994, which is directly filed in this Court, appointment of the Acting Chief Justice was challenged on the ground that when there was clear vacancy after retirement, instead of Acting Chief Justice, the incumbent should have been appointed on permanent basis being the most senior. During pendency of the petition, permanent Chief Justice of Pakistan was appointed and, therefore, the petitioner did not press the prayer to that extent vide C.M.A. 541-K of 1996, dated 10th March, 1996. Secondly, proper assistance by the learned counsel on this point was also not rendered. Thirdly, the cases are pending in which the same subject-matter is involved. For such reasons, we do not consider it proper to go into the question of interpretation of these two provisions.
7. Our conclusions and directions in nutshell are as under:- "(i) The words "after consultation" 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 the 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 be 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 accruing in the offices of Chief Justices 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 exists.
(v) That in view of the relevant provisions of the Constitution 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 reason 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 the Constitution and, therefore, mandatory Constitution 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) The 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 strong 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 Constitution relates to the experience/practice at the Bar and not simpliciter the period of enrolment.
(xi) That the simpliciter political affiliation of a candidate for Judgeship of the superior Courts may not be 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 Hasan Vs. 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 the Federal Shariat Court be processed and the same be brought in line with the above conclusion No, (viii); and
(t) That upon the appointment of the permanent Chief Justice 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 Court 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 assumption of office by a permanent incumbent, whichever is later in time and to take action for regularizing the appointment/ confirmation of the Judges recently appointed/ confirmed inter alia of respondents Nos.7 to 28 in Civil Appeal No,805/1995 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."
28. On passing of above short order in the Judges' case, reasons for the short order were recorded subsequently by the three Hon'ble Judges of the bench separately namely by Hon'ble Mr. Justice Sajjad Ali Shah (the then Chief Justice of Pakistan), Hon'ble Mr. Justice Ajmal Mian and Hon'ble Mr. Justice Manzoor Hussain Sial. Hon'ble Mr. Justice Fazal Ilahi Khan and Hon'ble Mr. Justice Manzoor Hussain Sial agreed with the judgment/reasons given by Hon'ble Mr. Justice Ajmal Mian but Hon'ble Mr. Justice Manzoor Hussain Sial also added his reasons. In the case of Mr. Justice Ghulam Haidar Lakho (supra) the Hon'ble Supreme Court of Pakistan has held that " the opinion recorded by both Mr. Justice Sajjad Ali Shah, the Chief Justice and Mr. Justice Ajmal Mian in the Judges' case are to be treated as judgment of this Court."
29. At page 422 of the Judges case as many as 11 Constitutional questions of public importance relating to working of judiciary were formulated by the Court and I am mainly concerned here with the question No,(ii) which is as follows:
(ii) What is the import of the words "after consultation" used inter alia in Articles 177 and 193 of the Constitution? To what extent the President is bound to accept the opinion of the Chief Justice of Pakistan and/or Chief Justice of a High Court while making appointment of Judges in the Supreme Court and High Courts under the above Articles 177 and 193 of the Constitution?
30. After examining the peculiar features of our country and constitutional history relating to judiciary of pre-partition and post-partition times, the Islamic jurisprudence in relation to working of judiciary and its appointments and commentaries of various authors on constitutional work, the judgment of six Member bench of this Court in the case of Sharaf Faridi & 3 others V/S The Fed. Of Islamic Republic of Pakistan through Prime Minister of Pakistan & another (PLD 1989 Karachi 404), the case of M.M. Gupta and another v. State of J&K & others (AIR 1982 SC 149) and the case of Supreme Court Advocate on Record Association v. Union of India (AIR 1994 Supreme Court 268) the Hon'ble Supreme Court made the following observations at page 490 of the judgment:- ' The object of providing consultation inter alia in Articles 177 and 193 for the appointment of Judges in the Supreme Court and in the High Courts was to accord Constitutional recognition to the practice/convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Federal Court, which was obtaining prior to the independence of India and post independence period, in order to ensure that competent and capable people of known integrity should be inducted in the superior judiciary which has been assigned very difficult and delicate task of acting as watch dogs for ensuring that all the functionaries of the State act within the limits, delineated by the Constitution and also to eliminate political considerations. Mohtarma Benazir Bhutto, as the then Leader of the Opposition, while making a speech on 14-5-1991 on Shari'ah Bill in the National Assembly, had rightly pointed out that the power of appointment of Judges in the superior Courts had direct/nexus with the independence of judiciary. Since the Chief Justice of the High Court concerned and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations, as pointed out hereinabove, have been consistently accepted during pre-partition days as well as post-partition period in India and Pakistan. I am, therefore, of the view that the words "after consultation" referred to inter alia in Articles 177 and 193 of the Constitution involve participatory consultative process between the consultees and also with the Executive. It should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The Chief Justice of a High Court and the Chief Justice of Pakistan are well equipped to assess as to the knowledge and suitability of a candidate for judgeship in the superior Courts, whereas the Governor of a province and the Federal Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct. I will not say that anyone of the above consultees/functionaries is less important or inferior to the other. All are important in their respective spheres. The Chief Justice of Pakistan, being Paterfamilias i,e, head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely, his views deserve due deference. The object of the above participatory consultative process should be to arrive at a consensus to select best persons for the judgeship of a superior Court keeping in view the object enshrined in the Preamble of the Constitution, which is part of the Constitution by virtue of Article 2A thereof, and ordained by our religion Islam to ensure independence of judiciary.
Quaid-e-Azam, the Founder of Pakistan, immediately after establishment of Pakistan, on 14-2-1948, while addressing the gathering of Civil Officers of Balochistan, made the following observation which inter alia included as to the import of discussions and consultations, copy of which is furnished by Mr. Yahya Bakhtiar:- "In proposing this scheme, I have had one underlying principle in mind, the principle of Muslim Democracy. It is my belief that our salvation lies in following the golden rules of conduct set for us by our great law-giver, the Prophet of Islam. Let us lay the foundation of our democracy on the basis of truly Islamic ideals and principles. Our Almighty has taught us that 'our decisions in the affairs of the State shall be guided by discussions and consultations'. I wish you, my brethren of Balochistan, God speed and all success in the opening of this new era. May your future be as bright as I have always prayed for and wished it to be. May you all prosper." (Underlining is mine).
' The views of none of consultees can be rejected arbitrarily in a fanciful manner, I am further inclined to hold that the views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wished to disagree with their views, it has to record strong reasons which will be justiciable. I am also inclined to hold that a person found to be unfit by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for appointment as a Judge of a High Court or by the Chief Justice of Pakistan for the judgeship of the Supreme Court cannot be appointed as it will not be a proper exercise of power to appoint under the above Articles of the Constitution.
' It may be stated that there seems to be unanimity of views among the learned counsel appearing for the parties and the learned counsel appearing as amicus curiae that consultatory process is mandatory and without it no appointment/confirmation can be made. It must follow that in absence of consultation as contemplated and interpreted by this Court as above, the appointment/confirmation of a Judge in the superior Court shall be invalid. The above view which I am inclined to take is in consonance with the well established conventions, Islamic concept of 'Urf' and the proper exercise of power. "
31. In case of Al-Jehad Trust through Raees-ul-Mujahidin Habib AlWahabul Khairi, Advocate Supreme Court & another V/S Federation of Pakistan and others (PLD 1997 SC 84) which is a case arising, inter alia, out of a reference made by the President of Pakistan under Article 186 of the Constitution for opinion of the Supreme Court to the effect, whether or not the powers of President to make appointment of Judges in the Supreme Court and High Court in Articles 177 & 193 of the Constitution are subject to provision of Article 48(1) of the Constitution which envisages in the exercise of his function, the President shall act in accordance with the advice of Cabinet or Prime Minister. The matter of consultation as required under Articles 177 & 193 of the Constitution was further elaborated in this case and at page 193 of the judgment the following observation was made: "Since the interpretation of the various Articles by this Court becomes part of the Constitution and as it becomes the law, it is incumbent on all Executive and Judicial Authorities throughout Pakistan to act in aid of the Supreme Court by virtue of Article 190. An advice under clause (1) of Article 48 of the Constitution, therefore, cannot be in violation of the law as declared by this Court. In other words, if the advice tendered by the Prime Minister in respect of appointments of the Judges of the superior Courts is in accordance with the judgment of this Court in the Judges' Case, it will be binding on the President. But if the advice is contrary to the above judgment, the President has several options which inter alia include the following: -
(i) The President may agree with the reasons recorded by the Prime Minister for not accepting the recommendations of the Chief Justice or the Chief Justices. In that event the above reasons will be justiciable as held by this Court in the Judges' Case.
(ii) The President may refer back the matter to the Prime Minister for reconsideration under the proviso to clause (1) of Article 48.
(iii) The President may refer the matter for consideration of the Cabinet under clause (c) of Article 46 of the Constitution.
(iv) The President may convene a meeting and may invite the Prime Minister, the Chief Justice of Pakistan and the Chief Justice of High Court concerned for resolving the issue by participatory consultative process, consensus-oriented. Mr. Justice (Retd.) Muhammad Shahabuddin, former Chief Justice of Pakistan, in his Book under the title 'Recollections and Reflections' quoted by me in para 46 at page 483 in my opinion in the Judges' Case has referred to the above practice.
(v) The President may make a reference to this Court under Article 186 for soliciting opinion."
32. On perusal of the two judgments, one in the Judges' case and the other inter alia, arising out of the Presidential reference, the following law seems to have been laid down by the Hon'ble Supreme Court.
(I) The object of providing consultation, inter alia, in Articles 177 and 193 for the appointment of Judges in the Supreme Court and in the High Courts was to accord constitutional recognition to the practice/ convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Federal Court which was obtaining prior to independence of India and post- independence period, in order to ensure that competent and capable people of known integrity should be inducted in the superior judiciary;
(II) Since the Chief Justice of High Court concerned and Chief Justice Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations have been consistently accepted during pre-partition days as well as post-partition period in India and Pakistan;
(III) The words "after consultation" referred to inter alia, in Articles 177 and 193 of the Constitution involve participatory consultative process between the Consultees and also the Executive. It should be effective, meaningful, consensus-oriented leaving no room for complaint of arbitrariness or unfair play;
(IV) The Chief Justice of a High Court and Chief Justice of Pakistan are well equipped to assess as to the knowledge and suitability of a candidate of judgeship In the superior Courts whereas the Governor of a Province and the Federal Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct.
(V) None of the consultees/functionaries is less important or inferior to the other. All are important in their respective spheres. The Chief Justice of Pakistan being Paterfamilias i,e, head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely his views deserve due deference.
(VI) The view of none of the consultee can be rejected arbitrarily in a fanciful manner and that the views of Chief Justice of the High Court concerned and Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wish to disagree with their views, it has to record strong reasons which will be justiciable.
(VII) That if a person found to be unfit by the Chief Justice of a High Court and Chief Justice of Pakistan for appointment as a judge of a High Court or by the Chief Justice of Pakistan for the judgeship of the Supreme Court cannot be appointed as it will not be proper exercise of power to appoint under the Articles of the Constitution.
(VIII) That since the interpretation of the various Articles by the Supreme Court becomes part of the Constitution and as it becomes the law, it is incumbent on all Executive and judicial authorities throughout Pakistan to act in the aid of the Supreme Court by yirtue of Article 190. An advice under clause (1) of Article 48 of the Constitution, therefore, cannot be in violation of law as declared by the Supreme Court. If the advice tendered by the Prime Minister in respect of appointment of the Judge of a superior Court is in accordance with the judgment in'the Judges' case, it will be binding on the 'President. But if the advice is contrary to the said judgment the President has several, options which, inter alia, include the following:--.
(i) The President may agree with the reasons recorded by the Prime Minister for not accepting the recommendations of, the Chief Justice or the Chief Justices. In that even the above reasons will be justiciable as held in the Judges' case.
(ii) The President may refer the matter to the Prime Minister for reconsideration under the proviso of clause (1) of Article 48 of the Constitution.
(iii) The President may refer the matter for consideration of the Cabinet under clause (c) of the Article 46 of the Constitution.
(iv) The President may convene a meeting and may invite the Prime Minister, the Chief Justice of Pakistan and Chief Justice of High Court concerned for resolving the issue by participatory consultative process and consensus-oriented.
(v) The President may make a reference to the Supreme Court under Article 186 for soliciting opinion.
33. The consistent view of the Hon'ble Supreme Court of Pakistan as reflected from the above referred judgments has been that the Executive Authority is bound to accept the views of Chief Justice of High Court concerned and Chief Justice of- Pakistan in the matter of appointment of judges in superior judiciary and such view cannot be rejected arbitrarily for extraneous consideration and if the Executive wishes to disagree with their views, it has to record strong reasons which will be justiciable and that if a person is found to be unfit by the Chief Justice of a High Court concerned and Chief Justice of Pakistan for appointment as a judge of a High Court, he cannot be appointed as it will not be a proper exercise of power to appoint under Articles of the Constitution.' The judgment thus proceeds on the assumption that the views of the Chief Justice of a High Court and Chief Justice of Pakistan are identical and does not speak of a case in specific terms where the views of Chief Justice of High Court concerned and Chief Justice of Pakistan may, not be the same. The assumption that there will be identity of views Chief Justice of High Court concerned and Chief Justice of Pakistan in the matter of appointment of a Judge 'or Additional Judge of the High Court perhaps is based on the time tested fact that both the Chief Justice of High Court concerned and Chief Justice of Pakistan being Members representing judiciary have their channels of discussion/ consultation open between them and if there does crops-up difference of opinion between them, they are completely free to have their views discussed with each other to reach consensus between them. As an instance, the case of Mr. Justice Mushtaque A.
Memon (as he then was) was put before the Court. It was informed to the Court that when the tenure of Mr. Justice Mushtaque A. Memon as an Additional Judge of this Court was about to expire, recommendation was forwarded by the then Chief Justice of Sindh High Court for extending his tenure as an Additional Judge for another six months. The then Chief Justice of Pakistan did not agree with such recommendation of the 'then Chief Justice of Sindh.High Court and discussions opened between them and it was ultimately resolved that the then Chief Justice of Sindh High Court will recommend appointment of Mr. Justice Musthaque A. Memon as a permanent Judge of this Court which was done and ultimately accepted by the Executive. The difference in views between Chief Justice of High Court and Chief Justice of Pakistan in the matter of appointment of a Judge or an Additional Judge in the High Court have been arising but there appears to be no one case where it may not have, been resolved through the process of consultation between them. No such situation could have been visualized nor comprehended for the reason that Chief Justice of High Court and Chief Justice of Pakistan being head of their respective Courts are always expected to resolve their differences by an amicable means so as to forward to the Executive a consensus view from the side of judiciary regarding appointment of a Judge or an Additional Judge of a High Court.
34. His Lordship Verma, J who has written the majority view in the case of Supreme Court Advocate on Record Association (supra) has made a hint to an eventuality of conflict of opinion between a Chief Justice of High Court and Chief Justice of India in respect of ..Appointment of a Judge in High Court which was considered in the Judges' case at page 481 as follows: "Whereas in sub-para.(6) of para.501 of his opinion, he observed that there may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at time, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India." Reference may also be made to sub- para.8 of aforesaid para.501, where Verma, J. Opined that if the opinions of senior Judges consulted by the Chief Justice are contrary to the views of the Chief Justice as to the suitability of the recommend& for the reasons recorded by them, the President may accept their views and then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible. He further opined that similarly, when the recommendation is for appointment to a High Court and the opinion of the Chief Justice of the High Court conflicts with that of Chief Justice of India, the non-appointment for valid reasons to be recorded and communicated to the Chief Justice of India would be permissible. It is, therefore, evident that factually it has not been held that the Chief Justice's views would have primacy in all matters of recommendations made by him for the appointment of Judges in the superior, Courts. "
' The observations made in the last sentence in the above quoted paragraph from the Judges' case amply demonstrate that factually it has not been held that the Chief Justice's views would have primacy in all the matters of recommendations made by him for the appointment of Judges in the superior Courts.
35. I may note that after pronouncement in Judges' case was made by the Hon'ble Supreme Court, the word "consultation" with its definition was added in Article 260 of the Constitution initially through the Legal Frame Work Order 2002 (Chief Executive Order No,24/2002) which was made part of the Constitution by the Constitution (Seventeenth Amendment ) Act 2003 which is as follows: "consultation" shall, save in respect of appointments of Judges of the Supreme Court and High Courts, means discussion and deliberation which shall not be binding on the President."
36. In the Constitution various functions have been assigned to the President and among them there are some functions which the President has to perform with consultation namely; ,under Article 71(4) the President may in consultation of Speaker of National Assembly and Chairman of Senate make rules for conducting of business of Mediation Committee, under Article 72(1), the President after consultation with the Speaker of National Assembly and the Chairman may make rules as to the procedure with respect to joint sittings of and communication between two houses, under Article 101(1) to appoint Governor of each Province after consultation with Prime Minister, under Article 160(1) to appoint persons after consulation with the Governors of the Provinces to constitute National Finance commission except for the persons who are already designated in this Article under Article 177 to appoint Judges in the Supreme Court of Pakistan after consultation with the Chief Justice of Pakistan under Article 193(1) to point Judges of the High consultation with the consultees provided in this Article, under Article 200(1) to transfer a Judge of a High Court from one High Court to another High Court after consultation with the Chief Justice of Pakistan and Chief Justices of both High Courts, under Article 203C(4) to appoint a Judge of a High Court after consultation with the Chief Justice of High Court as a Judge of Federal Shariat Court, under Article 203F(3)(b) to appoint in consultation with the Chief Justice two Ulema in Shariat Appellate Bench of Supreme Court, under Article 218(2)(b) to appoint a Judge of High Court from each Province after consultation with the Chief Justice of High Court concerned and with the Commissioner as Member of Election Commission, under Article 235(1) make a proclamation of financial emergency after consultation with the Governors of the Provinces, under Article 243(3) to appoint in consultation with Prime Minister, Chairman Joint Chiefs of Staff Committee, the Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff, under Article 268(2) to accord sanction after consultation with the Prime Minister for altering, repealing or amending the laws specified in the Sixth Schedule.
These are the functions which under the Constitution are required to be performed by the President with consultation with the respective authorities as noted above.
37. The definition of the word "consultation" given in the Constitution is: shall, save in respect of appointment of Judges of the Supreme Court and High Courts, means, discussion and deliberation which shall not be binding on the President. This definition in the first place provides consultation by means of discussion and deliberation in the case of appointment of Judges in the Supreme Court and High Courts and secondly provides saving clause which as a rule is construed to exempt something from immediate interference or destruction. In Understanding Statutes Cannons of Construction, Second Edition by S.M. Zafar at page 114 the learned author has stated thus: "Therefore saving is a provision, the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation."
Based on such interpretation of saving clause, it can safely be construed that the word "consultation" as defined in the Constitution with meaning of discussion and deliberation, as an exception has been made binding on the President only in respect of appointment of Judges of Supreme Court and High Courts and it seems to be based on the rational not far to be found i,e, pronouncement of Hon'ble Supreme Court in the Judges' case.
38. In view of above state of law as it exists, I have examined the record of recommendations as handed over to the Court by Mr. Nazar Akbar the learned Deputy Attorney General of Pakistan and as noted above, which only comprised of three letters. The Chief Justice of the High Court of Sindh through his letter dated 4-12-2008 has initiated the process of recommendation through addressing the same to the Governor of Sindh. In such letter, detail discussion and reasons have been assigned in support of the recommendations and ultimately it recommended granting of extension of tenure of Additional Judge for a period of one year to respondents Nos.3 and 5 while it declined to recommend the appointment of respondent No,4 as permanent Judge of this Court. On this recommendation of the Chief Justice of High Court of Sindh, the Governor of Sindh sent his letter of recommendations dated 11-12-2008 to Mr. Justice Agha Rafique Ahmed Khan, the then Federal Law Secretary recommending the appointment of respondent No,3 as permanent Judge of this Court and in respect of respondents Nos.4 & 5 it recommended granting of extension of term as Additional Judges of this Court for a period of one year. Mr. Justice Abdul Hameed Dogar, the then Chief Justice of Pakistan in his letter dated 12-12-2008 addressed to Mr. Justice Agha Rafique Ahmed Khan the then Federal Law Secretary acknowledged the receipt of the recommendations of Chief Justice of High Court of Sindh and of the Governor of Sindh and noted in his letter the recommendations of the Chief Justice of High Court of Sindh and that of the Governor of Sindh and recommended that the respondent No,3 be appointed as Judge of the High Court of Sindh under Article 193 of the Constitution while the tenure of the respondents Nos.4 & 5 as Additional Judges be extended for a period of 6 months. It will thus be seen that in the first place the Governor of Sindh has not agreed with the recommendations of the Chief Justice of High Court of Sindh in respect of respondents Nos.3 & 4 to the extent that the respondent No,3 was recommended by the Chief Justice, High Court of Sindh for granting extension as an. Additional Judge for a period of one year while the Governor of Sindh has recommended his appointment as a permanent Judge of the High Court of Sindh while in respect of respondent No,4 the Chief Justice High Court of Sindh has declined to appoint him as permanent Judge but the Governor has recommended granting him extension as Additional Judge for a period of one year. The then Chief Justice of Pakistan agreed with the recommendations of the Governor of Sindh and recommended appointment of respondent No,3 as permanent Judge of the Sindh High Court and granting extension as Additional Judge to respondent No,4 for six months, As regards respondent No,5 both the Chief Justice of High.
Court of Sindh and the Governor of Sindh had recommended extension as Additional Judge for a period of one year which was curtailed by the then Chief Justice of Pakistan to six months. The President seems to have accepted the recommendation of the then Chief Justice of Pakistan and passed final order resulting in issuing of the impugned notifications. The main feature of the above noted the letters appears to show that although the Chief Justice of High Sindh in his letter has initiated recommendations in respect of respondents Nos.3 to 5 with detail discussion and assigning reasons in support of his recommendations but in respect of respondents Nos.3 and 4, it was dissented by the Governor of Sindh and also by the then Chief Justice of Pakistan and the President by making the final order pursuant to which the impugned notifications were issued.
There is nothing in the record placed before the Court which may show that either the Governor of Sindh, the then Chief Justice of Pakistan or the President have given reasons for dissenting with recommendations of the Chief Justice of the High Court Sindh or any of them at all consulted the Chief Justice of High Court of Sindh and sought his consensus in making appointment of the respondents No,3 and 4 as it has been done. Whether this manner of consultation between the constitutional consultees for appointment or otherwise of a Judge of a High Court was permissible by the Constitution read with the pronouncement of Hon'ble Supreme Court in Judges' case, obviously its answer is not difficult to find that it was not. In the Judges' case it was held that none of the consultees/functionaries is less important or inferior to the other and all are important in their respective spheres and the view of none of the consultee can be rejected arbitrarily in a fanciful manner and that the view of Chief Justice of High Court concerned and the Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wish to disagree with their views, it has to record strong reasons which will be justiciable. It was also specifically held in paragraphs (xiii) of the short order of the Judges' case that the consultation for appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Article of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultee would be violative of the Constitution and, therefore, invalid. This being the mandate of law, it was mandatory for the President/Executive to have given strong reasons for dissenting with the recommendations of the Chief Justice of the High Court of Sindh or ought to have consulted the Chief Justice of High Court of Sindh for obtaining his consensus in making appointment or otherwise of respondents Nos.3 and
4. Not an iota of evidence or material has been placed before the Court that any such effort at all was made either by the Governor of Sindh, the then Chief Justice of Pakistan or by the President/Executive. The argument that the President/Executive was bound by the recommendations of the then Chief Justice of Pakistan as a Paterfamilias of the judiciary, apparently seem to over simplify the matter which on its close scrutiny fails to meet the test laid down in the Judges' case that in the first place there has to be participatory consultative process between the consultees and also the Executive which should be effective, meaningful, consensus- oriented leaving no room for complaint of arbitrariness or unfair play and the each of the consultee is not less important or inferior to other and views of the none of the consultee can be rejected arbitrarily and if the Executive wish to disagree with a view of a consultee, it has to record strong reasons which will be justiciable and secondly the appointment/ confirmation made without consulting any of the consultee would be violative of the Constitution and therefore, would be invalid. Though in the Judges' case it is mentioned that the views of Chief Justice of Pakistan as a Paterfamilias of judiciary will deserve due deference but as observed by His Lordship Verma, J in the case of Supreme Court Advocates on Record Association (supra) that " when the recommendation is for appointment to a High Court, and the opinion of Chief Justice of High Court conflicts with that of Chief Justice of India, the non-appointment, for the valid reasons to be recorded and communicated to the Chief Justice of India would be permissible." Upon this observation His Lordship Ajmal Mian, J in the Judges' case observed that "It is, therefore, evident that factually it has not been held that the Chief Justice's views would have primacy in all matters of recommendations made by him for, the appointment of Judges in the superior Courts." The primacy of view of the Chief Justice of India is based on plurality in the process of decision making under the Constitution of India and not as an individual and it is so reflected in the following observation of His Lordship Verma, J, reproduced in the Judges' case at page 447: "Appointments:--
(1) What is the meaning of the opinion of the judiciary symbolized by the view of the Chief Justice of India?
' This opinion has to be formed in a pragmatic manner .And past practice based on convention is a safe guide. In matters relating to appointment in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the view of the senior most Judges of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of, the fact that he has come from the same High Court, or otherwise. Articles 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion, This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation.
This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
' In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of the High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior most Judges of the High Court. (Emphasis is mine)
' The Chief Justice of India, for the formation of his opinion, has to adopt a course which would enable him to discharge his duty objectively to select the best available persons as Judges of the Supreme Court and the High Courts. The ascertainment of the opinion of the other Judges by the Chief Justice of India and the Chief Justice of the High Court, and the expression of their opinion, must be in writing to avoid any ambiguity."
39. Article 193 of the Constitution of Pakistan for appointment of a Judge in High Court, provides for two judicial consultees, one the Chief Justice of the High Court concerned and the other Chief Justice of Pakistan. Both being equal consultees, their views will prevail with the Executive in the matter of appointment or non-appointment of a Judge in a High Court. The views of the Chief Justice of Pakistan as a Paterfamilias of the judiciary, will deserve due deference if the same is also supported by views of the Chief Justice of High Court concerned which has to be evolved through participatory consultative process which should be effective, meaningful, purposive and consensus-oriented. In the event where there is no identity of views between the Chief Justice of High Court concerned and Chief Justice of Pakistan, there would be no abidingness of the recommendations of the Chief Justice of Pakistan on the Executive and if the Executive accepts the views of the Chief Justice of Pakistan without supporting views of Chief Justice of High Court concerned, the action of the Executive will become justiciable. This is so because in the Judges' case it has been consistently held that the views of the Chief Justice of the High Court concerned and the Chief Justice of 1 Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wish to disagree with their views, it has to record strong reasons which will be justiciable and that a person found, to be unfit by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for appointment as a Judge of a High Court cannot be appointed as it will not be a proper exercise of power to appoint under the Articles of the Constitution. Thus there has to be conjunctive views of the judicial consultees to make it binding on the Executive. I am therefore, of the clear view, that by not adhering to the recommendations of the Chief Justice of the High Court of Sindh and by not giving any reasons for M such non adherence and without consulting the Chief Justice of the High Court of Sindh, appointing respondent No,3 as a Permanent Judge of this Court and granting 6 months extension as Additional Judge to the respondent No,4 through the impugned notifications was not based upon mandatory consultation as required by the Constitution read with Judges' case which provides that there should be participatory consultative process between the consultees and also with the Executive and it should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play and that the views of each of the consultee is binding on the Executive and in case if he wishes to disagree with view of any of the consultee, he is required to give strong reasons for it
40. It was argued before the Court by the learned Attorney General so also by Mr. Aziz A. Munshi and Mr. Yawar Farooqui that the recommendations of the Chief Justice of Pakistan who being Paterfamilias of judiciary is not justiciable and in this respect relied upon the judgments in the case of Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 Supreme Court 939) and the case of Mr. Justice Ghulam Hyder Lakho (Supra). So far the case of Supreme Court Bar Association referred to by the learned Counsel, its facts were altogether different from the present case as it related to the question of appointment of Judges of the Supreme Court of Pakistan only. Article 177 of the Constitution provides that the Judges of Supreme Court shall be appointed by the President in consultation with the Chief Justice. There is thus one judicial consultee in this provision and by the dint of Judges' case and the definition of the word "consultation" in the Constitution, the consultation of the Chief Justice in appointment of Judges in the Supreme Court has been made binding on the President. In appointment of a Judge in the High Court, the Judges' case consistently holds that the views of the Chief Jugtice of the High Court concerned and the Chief Justice of Pakistan will be binding on the Executive. The views of the judicial consultees in respect of appointment of a Judge in a High 0 Court has to be expressed by the Chief Justice of Pakistan with the supporting views of the Chief Justice of the High Court concerned which has to be evolved through participatory consultative process to be effective, meaningful, purposive and consensus- oriented. If the recommendations of the Chief Justice of Pakistan are not based on such consultative process, with all due respect and humility, my view is, that such recommendations to the Executive will not be binding and if the Executive accepts such recommendations, it will become justiciable. In the Ghulam Hyder Lakho's case also it was observed that: "In view of the above quoted observation of Ajmal Mian, J it is quite clear that the recommendations of the Chief Justice of the High Court and that of Chief Justice of Pakistan are not justiciable."
The above quotation will show that non justifiability is attached to the p recommendations of the Chief Justice of High Court and that of Chief Justice of Pakistan expressed conjunctively.
41. As regards the arguments of Mr. Yawar Farooqui that the Additional Judge has a legitimate expectancy of being made a permanent Judge, in the Judges' case it was observed as follows: "However, in Pakistan, the above Article 197 is on different footing as it inter alia postulates the appointment of an Additional Judge against a permanent vacancy. It is also well-established practice/convention that if an Additional Judge performs his functions during the period for which he was appointed to the satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, he has always been appointed as permanent Judge except in a rare case. In this view of the matter, a person who is appointed against permanent vacancy as Additional Judge in a High Court or if a permanent vacancy occurs during his period as an Additional Judge, he acquires a reasonable expectancy to be considered as a permanent Judge and in case he is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, he is to be appointed as such in the absence of very strong reasons to be recorded by the President/Executive which may be justiciable. Additionally, the Executive, instead of accepting the recommendations of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for permanent appointments without further consulting them, cannot extend the period instead of appointing them on permanent basis as recommended by the two Chief Justices."
The reading of the above quotation will amply demonstrates that though there is well established practice/convention of an Additional Judge being appointed against a permanent vacancy has a reasonable expectancy to be considered for appointment as a permanent Judge but such expectancy has been made subject to the satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. If the Chief Justice of the High Court concerned does not recommend the appointment of an Additional Judge as a Permanent Judge, the qualification of reasonable expectancy will not stand, for that in order to take contrary view from the one taken by the Chief Justice of the High Court concerned either strong reasons have to be assigned or his consensus through consultative process is obtained. In the case of Supreme Court Bar Association (supra) which though related to the appointment of Judges in the Supreme Court but while dealing with the argument of legitimate expectancy, the Court observed that the, rule of fitness and suitability has an edge over the principle of seniority and legitimate expectancy.
42. Mr. Yawar Farooqui further argued that if the matter of confirmation of an Additional Judge in a High Court is squarely left on the views of the Chief Justice High Court concerned, the Additional Judge may become target of personal like and dislike and therefore, the views of other consulates should not be ignored. Though in substance, the argument has already been addressed by me above but I may usefully reproduce initial part of the para-52 of the judgment in the Judges' case which is as follows: "52. I may examine the above issue from the Islamic point of view, I have already held in para 22(vii) on the basis of various Islamic sources that the power to appoint inter alia Judges is a sacred trust, the same should be exercised in utmost good faith, any extraneous consideration other than the merit is a great sin entailing severe punishment."
' Except for bare argument of personal like and dislike, no instance was quoted by the learned Counsel where the fact of personal like or dislike may find support.
43. At the conclusion of hearing on 6-5-2009 the Court has passed the following short order.
"We have heard all the learned counsel for the parties, learned Attorney General for Pakistan, learned Advocate General of Sindh and learned Amictis Curiae in the matter. For the reasons to follow later this petition is disposed of in the following terms;
(1) The Petition challenging the right to hold office of a judge of this Court is maintainable under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan 1973.
(2),consultation with regard to the confirmation an extension of a Judge of the High Court by the President/Executive with the consultees mentioned in the Articles 193 and 197 of the Constitution of Islamic Republic of Pakistan 1973 read with definition of consultation under Article 260 of the Constitution has to be effective, meaningful consensus oriented, purposive and therefore, any appointment, confirmation and or extension in disregard of these principles shall be violative of the Constitution and the well established constitutional conventions shall be invalid.
' As the above procedure was not adhered to in the matter of confirmation and extension of Respondents Nos.3 and 4 respectively, we therefore hold that;
(a) The confirmation of Respondent No,3 as a Judge of this Court is hereby treated as an extension in his tenure as an Additional Judge of this Court as recommended by the Chief Justice of this Court for a period of one year from the date of expiry of his tenure as mentioned in the notification dated 14-12-2007.
(b) As regard Respondent No,4 we are of the view tat the Chief Justice of this Court did not recommend his name, hence extension in his tenure being violative, of the Constitution is declared invalid.
(c) As regard Respondent No,5 there is no disagreement of opinion by and between all the constitutional consultees, therefore the Petition as against Respondent No,5 is dismissed.
' We however find it necessary to clarify that we have consciously avoided deliberating upon Proclamation of Emergency Order, 2007 and the Oath of Judges Order, 2007 and its ramifications and consequences firstly for the reasons that the said question is before Honourable Supreme Court and secondly Mr. Rasheed A. Razvi counsel for the Petitioner has not pressed said ground before us for the limited purposes of decision in the instant petition."
' The above are the reasons for the short order which is to be read as part of the judgment.
44. The Court is extremely grateful to M/s. Khalid Anwar, Abdul Hafiz Lakho and Qazi Faez Issa, the learned senior Advocates who appeared as Amici Curiae and rendered their valuable assistance to the Court in addressing intricate issues raised in this case.
(Sd.) Gulzar Ahmad, J ' I have agreed to reasoning subject to separate note.
(Sd.) Mushir Alam, J (Sd.) Khilji Arif Hussain, J (Sd.) Maqbool Baqar, J (Sd.) Faisal Arab, J ' FAISAL ARAB; J.---This constitution petition filed under Article 199 of the Constitution by the Sindh High Court Bar Association calls in question the confirmation of Justice Bin Yamin as a Judge and extension in judicial tenures of Justices Pir Ali Shah and Arshad Noor Khan as Additional Judges of this High Court. The main ground that has been taken against these three Judges, who are respondents Nos.3 to 5 in this petition, is that while confirming respondent No,3 and extending tenures of respondents Nos.4 and 5, the negative opinion of the Chief Justice of this High Court, Justice Anwar Zaheer Jamali was disregarded and notifications for the confirmation / extension in judicial tenures were issued by the President of Pakistan. In this manner it is alleged that provisions provided in the Constitution for consultation and as interpreted in the cases of Al-Jehad Trust (PLD 1996 SC 324), Malik Asad All (PLD 1998 SC 161), Ghulam Haider Lakho (PLD 2000 SC 178) and the Supreme Court Bar Association (PLD 2002 SC 939) were violated which amounts to interferencein the independence of the judiciary. As the petitioner maintains that respondents Nos.3 to 5 are not entitled to constitutionally hold their offices, therefore the petitioner seeks information in the nature of quo warrant and a declaration that confirmation of respondent No,3 and extension in judicial tenures of respondents Nos.4 and 5 is ultra vires of the Constitution and of no legal effect.
2. In response to- the notices that were issued, respondent No,3 filed a statement stating that in order to maintain dignity of the office of a High Court Judge, he has no comments to offer except that he was appointed by the competent authority after due consultations and therefore his appointment is not open to question under Article 199 of the Constitution. Respondent No,4 did not file any written reply or counter affidavit. His counsel however contested the proceedings by making oral submissions. Respondent No,5 filed counter affidavit, wherein, inter alia, the maintainability of the petition has been challenged on the ground that the petitioner has no locus standi to file this petition. It is also the case of the respondent No,5 that the appointment and extensions in the judicial tenures were made strictly in accordance with the provisions of Articles 193 and 197 of the Constitution and denied that the Chief Justice of this High Court in his opinion has made any adverse comments against him.
3. After hearing arguments at the preliminary stage, we on 27-4-2009 framed following question which needs to be addressed by us while deciding the controversy on merits: "Whether in the matter of recommendation, extension, confirmation or otherwise of Respondents No,3 to 5, there was consultation by and between the constitutional consultees within the contemplation of Articles 193 and 197 of the Constitution of Islamic Republic of Pakistan, 1973, as expounded by the Honourable Supreme Court of Pakistan in the cases of Al-Jehad Trust (PLD 1996 SC 324), Malik Asad Ali (PLD 1998 SC 161), Ghulam Haider Lakho (PLD 2000 SC 178) and the Supreme Court Bar Association (PLD 2002 SC 939)".
4. Mr. Yousuf Laghari, learned Advocate General of Sindh, at the very outset raised preliminary objection as to the maintainability of this petition against a judge of a High Court on account of the bar contained in Article 199(5) of the Constitution. He also questioned the constitution of this bench by referring to Rule 12 of Sindh Chief Court Rules (Appellate Side) and section 12 of Sindh Court Act, 1926. He also submitted that adverse remarks made against respondents Nos.3 to 5 in paragraph 7 of this petition be expunged as they are derogatory to the office of a judge of a superior Court. The counsel for respondents Nos.4 and 5 has raised similar preliminary objections.
5. Mr. Rasheed A. Razvi, learned counsel for the petitioner, in response to the preliminary objection that petition is not maintainable under Article 199 (5) of the Constitution, referred to the case of Abrar Hasan reported in PLD 1976 SC 315 as well as to the case of Malik Asad Ali reported in PLD 1998 SC 161 and submitted that in both these cases it has been held that the provisions of Article 199 (1)
(b) (ii) of the Constitution can be invoked to seek information in the nature of quo warranto even against a Judge of a superior Court. With regard to applicability of Rule 12 of Sindh Chief Court Rules (Appellate Side) read with Section 12 of Sindh Court Act, 1926, Mr. Razvi argued that as this full bench has not been constituted at the instance of a Division Bench and no legal question has been referred for its consideration, therefore the provisions of Rule 12 of Sindh Chief Court Rules (Appellate Side) have no application. He further submitted that it is the prerogative of the Chief Justice to constitute benches and in the present case the Chief Justice of this Court, considering the fact that questions of public importance have been raised in this petition, directed the constitution of full bench comprising of five Judges. He submitted that in doing so it was not at all necessary that one of the members of the division bench before which this petition earlier came up for hearing should, have also been a member of the full bench. He then submitted that in any case Sindh Court Act, 1926 stood repealed by. Sindh Civil Courts Ordinance, 1962 and therefore it has no application. He submitted that after the creation of one unit, the Rules of Lahore High Court became applicable and as the Sindh Chief Court Rules (Appellate Side) were never revived, the Lahore High Court Rules continue to remain applicable to this Court as well.
6. With regard to the preliminary objection taken by the respondents on the locus standi of the petitioner to file the present petition, Mr. Rasheed A. Razvi referred to Memorandum 3(d) of the Meniorandum of Association of the Sindh High Court Bar Association and Rule No, 165 of Pakistan Legal Practitioners and Bar Councils Rules, 1976 and submitted that the provisions of the Memorandum and the Rules entitle the petitioner to file the present petition.
7. On merits of the petition, Mr. Rasheed A. Razvi, argued that in the matter of confirmation of respondent No,3 and extension 'in the judicial tenures of respondents Nos.4 and 5 there was no effective consultation as defined in the case of Al-Jehad Trust reported in PLD 1996 SC 324 (alsq known as Judges' Case) and other cases that followed the Judges Case. He submitted that in the matter of appointment of Judges to the High Courts, rule has been laid down in the Judges' Case that apart from the recommendations of the Chief Justice of Pakistan, the recommendations of the Chief Justice of the High Court form's essential part of the consultative process and cannot be ignored. He submitted that in the appointment and confirmation of a judge of a High Court, the recommendations of the Chief Justice of the concerned High Court should always be preferred as he is the best person to judge the suitability and fitness of person to be appointed as a High Court Judge. Mr. Razvi further submitted that recommendations of the Chief Justice of the High Court should not have been ignored by the President and finding two conflicting opinions about respondents No,3 to 5, he should not have appointed / extended their tenures and at best he should have referred the matter back for further consultations on the differences. He submitted that if the Chief Justice of Pakistan intends to disagree with the negative recommendations of the Chief Justice of the High Court then before expressing his final opinion to the President, he should have held further consultations with the Chief Justice of this High Court so that the conflicting opinions are reconsidered and differences sorted out. He submitted that in case t*cord show that matter was referred back and the Chief Justice of this Court reconsidered his earlier opinion then he has' no case but if' the matter was never referred back to the Chief Justice of this Court then there is total absence of effective consultations as required to be held in terms of the Judges Case.
8. Mr. Razvi while reading specific passages from the Judges' Case submitted that it has been held that the consultations should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or unfair play. He submitted that this Court may examine the entire consultative process in the light of the Judges' Case which holds the field and in case there is any deviation from the rule laid down in the Judges Case then the confirmation or extension in tenures of respondents Nos.3 to 5 be declared invalid. Emphasizing the importance of consensus between the two judicial consultees in the consultative process, Mr. Rasheed A. Razvi submitted that in the Judges Case wherever the word 'and' appears between the Chief Justice of Pakistan and Chief Justice of the High Court with regard to their opinions, it is to be read in unison i,e, the opinion which they both co Electively form with regard to the suitability and fitness of an appointee and wherever it is mentioned that primacy lies with the Chief Justice of Pakistan it means primacy of the final opinion which is forwarded to the executive by the Chief Justice of Pakistan after it is collectively formed with the Chief Justice of the concerned High Court, leaving no differences between them. He submitted that when differences occur in the opinions of the two judicial consultees then the same should be first sorted out by referring the matter back for reconsideration of the opinion and without such referral, conflicting opinions remain on the record and in such circumstances appointment should not be made as the same would become controversial.
9. Mr. Aziz A. Munshi learned advocate, who appeared on behalf of the Province of Sindh relying on the case of Supreme Court Bar Association versus Federation of Pakistan reported in PLD 2002 SC 939 argued that recommendations of the Chief Justice of Pakistan have been held to be not justiciable and therefore are final and not open to question in any legal proceedings. He submitted that in the confirmation of. Respondent No,3 and extensions in the tenure of respondent No,4 and 5, the Chief Justice of Pakistan has given his favourable opinion and on that basis the notifications for confirmation / extensions in judicial tenures were issued therefore the same cannot be called in question in these proceedings.
10. Mr. Munshi also argued that even where differences of opinion arise between the two judicial consultees, the opinion of the Chief Justice of Pakistan has to prevail over the opinion of the Chief Justice of the High Court as the opinion of the former has primacy over the latter.
11. Mr. Munshi next argued that once a person has been appointed on the recommendations of the Chief justice of Pakistan as a Judge or as an Additional Judge then he cannot be removed other than by invoking the provisions of Article 209 of the Constitution as a judge of superior Court cannot be removed in any other way. He also argued that this petition is not maintainable as the petitioner has no locus standi to file this petition.
12. Mr. Yawar Farooqui, learned counsel for respondent No,4 argued that the petition is based on information of persons who are not supposed to have access to the privileged record of the Chief Justice of the High Court. He also argued that opinions of the consultees such as Governor and Chief Justice of Pakistan were taken into consideration and accepted while extending judicial tenure of Respondent No,4. He submitted, that provisions of Article 199 (1) (b) (ii) of the Constitution could have been invoked only when the respondent Judges were not qualified to be appointed as Judges of this Court, which is not the case here. He next submitted that in so far as respondent No,4 is concerned, the Chief justice of Pakistan has not confirmed him but only gave him extension in his judicial tenure for a period of six months and in such circumstances it would not be appropriate to scrutinize the extension of judicial tenure of respondent No,4. He argued that even if the Chief Justice of the High Court has expressed any negative opinion about respondent No,4, he would again be examining respondent No,4's performance by June this year and shall be giving his final opinion about him. He further submitted that Respondent No,4 has spent 31 years in service in the subordinate judiciary and in his entire tenure no adverse remarks are on his record therefore no useful purpose would be achieved if respondent No,4 at this stage is stopped from functioning as Additional Judge of this Court. He further submitted that the deficiency in the consultation process, if any, should not be made basis for respondent No,4's disqualification and on the contrary the deficiency in the consultative process be rectified without taking any adverse action. He also 'submitted that there is no case law which deals with a situation where differences in the consultative process have occurred between the Chief Justice of Pakistan and Chief Justice of a High Court however there is case law which suggests that Chief Justice of Pakistan has veto power over the other Consultees as his opinion has been given primacy over the others, therefore, when the Chief Justice of Pakistan recommended extension in the tenure of respondent No,4' then his opinion was not open to question.
13. Mr. Jawed Alarn Advocate who appeared for respondent No,5 argued that it is no body's case that no consultation took place at all He submitted that extension in the judicial tenure of respondent No,5 was made on the recommendations of the Chief Justice of Pakistan who holds primacy c ver the opinion of the other consultees in the matter and therefore no illegality was committed. In addition to this, he adopted the arguments of Mr. Yawar Fzreoqui.
14. Mr. Qazi Faez Issa who appeared as amicus curiae submitted that in order to ascertain whether the constitutional requirements of consultative process were met or not, the official record be examined by the Court. He submitted that 'opinion of the Chief Justice of this High Court cannot be lightly taken as a bare formality; if there were no deliberations to sort out the differences of opinions then the recommendations of the Chief Justice of the High Court would become meaningless, defeating the very purpose of having consultations under Article 193 of the Constitution. He submitted that in the consultative process both the Chief Justice of Pakistan as well as Chief Justice of High Court have veto power in the sense that if any of them does not recommend the appointment or extension in the judicial tenure of any appointee then such negative recommendations cannot be ignored by the executive and neither appointment can be made nor judicial tenure extended. He further submitted that in the present case, the de jure Chief justice of Pakistan, Justice Iftikhar Muhammad Chaudhry was not allowed to function and Justice Abdul Hameed Dogar usurped the office of Chief Justice of Pakistan until his retirement on 21.03.2009, therefore, for this reason also the opinion of Justice Abdul Hammed Dogar cannot be treated as legitimate opinion under the Constitution. He further submitted that in view of the unconstitutional acts committed on 3-11-2007 and without such action being validated by the Parliament, the case of Tikka Muhammad Iqbal is not binding on this Court. He submitted that mechanism for amending the Constitution is provided in Article 238 of the Constitution and no amendment can be brought about in the Constitution without following such mechanism. He therefore submitted that the judgment given in the case of Tikka Muhammad Iqbal case, whereby the infamous and so-called Article 270-AAA was attempted to be made part of the Constitution, has no legal validity. He further submitted that even otherwise, the case of Tikka Muhammad Iqbal was decided by a short order dated 23.11.2007 and this short order does not mentions the so-called Article 270-AAA as the same was not even subject matter of dispute in that case, therefore the detailed judgment given in Tikka Muhammad Iqbal's case cannot legitimize Article 270-AAA and make it part of the Constitution. He finally submitted that inspite of the defects in the entire consultative process, let the cases of respondents Nos.3 to 5 be ordered to be regularized by starting the whole process de novo in order to resolve the controversial issue involved in this petition.
15. Mr. Khalid Anwar, learned senior counsel who appeared as amicus curiae submitted that in the process of appointment, confirmation and extension of judicial tenures of the Judges, the fact as to who was de jure or de facto Chief Justice of Pakistan may be overlooked; the only thing which needs to be examined is whether the consultative process that was carried out was meaningful and consensus oriented. He submitted that when consultations are required to be consensus oriented then it means that controversial persons should not be appointed; once Chief Justice of the High Court in his opinion expresses disapproval of any person to be appointed as Judge and on the other hand the Chief Justice of Pakistan finds such person to be suitable for appointment then the record must reflect that further consultations were held between them to sort out the differences. He submitted that it is to be seen whether the Chief Justice of Pakistan in his opinion has discussed the opinion of the Chief Justice of the High Court who has given negative opinion about a recommended and touched upon the areas of their differences. Without addressing the differences in the two opinions, the purpose of having meaningful and effective consultations would never be realized. He submitted that where the differences between the Chief Justice of Pakistan and Chief Justice of the High Court remain, in spite of an attempt to sort them out, then appointment should not be made in the best interest of the judiciary as the appointee has become controversial. He submitted that unless the Chief Justice of the High Court gives his approval in fovour of an appointee,, the Chief Justice of Pakistan cannot impose his own opinion as there is no room for arbitrariness in the whole process of consultation nor Article 193 of the Constitution makes any consultee superior to the other. He elaborated his submission by stating that the powers of the Chief Justice of Pakistan are (a) judicial power (b) administrative power and (c) as a constitutional consultee and acting as consultee under Article 193 of the Constitution, he cannot sit in appeal on the recommendations of the Chief Justice of the High Court for the reason that Article 193 does not give overriding effect to the opinion of the former over the opinion of the latter. He therefore submitted that there is no primacy of the opinion of Chief justice of Pakistan over the opinion of the Chief Justice of the High Court. He elaborated this submission by stating that what is meant by primacy of opinion of the Chief Justice of Pakistan is not the primacy of opinion of an individual but the primacy of the collective opinion of both the judicial consultees over the opinion of the executive consultees. Mr. Khalid Anwar therefore maintained that in ease two diverse opinions come before the President, one of the Chief Justice of Pakistan and the other of Chief Justice of High Court then the President should either refer the matter back to the judicial consultees for reconsideration or should not appoint a controversial person at all.
16. Mr. Khalid Anwar next submitted that the entire process of consultation has to be transparent and should always be in writing in order to lend credence to the consultative process, which should then become part of the record as the appointment of judges to the superior Courts is too important a matter to be left to conjunctures and speculation.
17. Mr. Khalid Anwar next submitted that the question which is to be addressed in this petition is whether the obligation that is required in a consultative process, as contemplated in the Judges Case, was discharged or not. Whether consultations were held to an extent that left no room for arbitrariness. If this had happened then it is end of the matter but if the record shows that the opinion of the Chief Justice of the High Court was summarily brushed aside then this is a procedural lapse creating inherit defect in the consultative process and would be open for judicial review. In support of his submission Mr. Khalid Anwar read relevant passages from the Judges' case, which shall be referred by us in the latter part of this judgment.
18. Mr. Abdul Hafeez Lakho who also appeared as amicus curaie submitted that this Court may examine the record in order to ascertain whether there were meaningful consultations or not and in case any procedural lapse is found then the consultative process be started de novo in order to bring it in consonance with the rules laid down in the Judges' Case. He also submitted that whether at the relevant time there was a de jure Chief Justice of Pakistan or not, the de facto doctrine is always applicable which may be applied to the cases of respondent judges. In support of his submission on de facto doctrine, he referred to paragraph 142 of Asad Ali's case reported in PLD 1998 SC 161 and read a passage from page 1496 of Mehram case reported in PLD 1998 SC 1445.
19. The Attorney General for Pakistan Mr. Sardar Abdul Latif Khoso at the very outset submitted that as the conduct of the respondent Judges per se is not under scrutiny in this petition it is appreciable that this Court vide order dated 28-4-2009 expunged the adverse remarks that were made in the petition against the respondent Judges. He submitted that had such remarks been allowed to remain on record, it would have undermined the prestige of the judiciary. On merits of the petition he submitted that the Judges' Case talks about consensus but consensus does not mean unanimity of opinion of Chief Justice of the High Court concerned with the Chief Justice of Pakistan as the latter holds primacy in the matter and in the present case the confirmation of respondent No,3 and extension in the judicial tenures of respondent No,4 and 5 were backed by the recommendations of Chief Justice of Pakistan, therefore no impropriety or illegality was committed in the consultative process.
20. We shall now proceed to examine the above-referred submissions that have been made by the learned counsel for the parties and amicus curiae. I. Writ of Quo Warranto:
21. Under our constitutional history, quo warranto used to be one of the recognized writs. This writ was initially provided under section 223-A of Government of India Act, 1935 and thereafter under Article 170 of 1956 Constitution. When invoked, it requires a person, to whom it is directed, to show under what authority he was holding a public office. The issuance of writs for the first time was don,e away with under the 1962 Constitution and in substitution thereof the power of judicial review of executive / administrative actions was given to the High Courts, which included the power to examine the right to a public office. This last mentioned remedy i,e, the power to examine the right to a public office, which is akin to writ of quo warranto, was also adopted in our 1973 Constitution under Article 199 (1) (b) (ii) which reads as follows: "199. Jurisdiction of High Court: (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) .................................................................
(i).....................................................................................
(ii).................................................
(b) On the application of any person, make an order- (i)......................................................................
(ii) Requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office"
22. Under this specific provision of Article 199 (1) (b) (ii) of the Constitution, right of a person to hold a pubic office can be tested. The provisions of this Article are applicable in cases where there is (i) intrusion or usurpation of a public office i,e, either the office was never granted to a person or if granted, his right to the office subsequently stood terminated or forfeited or (ii) the grant of public office is found to be legally defective. In any of these situations, a High Court can declare the right to a public office to be invalid. Hence under Article 199(1)(b)(ii) of the Constitution, a High Court can inquire from a holder of public office, by what authority he has a right to hold his office. While examining the legality of an appointment "to a public office, not only the authority of the grantee comes under scrutiny but the scrutiny can go beyond the grant itself and examine the very propriety and legality of the procedure that was adopted in the grant of public office. In other words, a High Court can examine the question whether the procedure that was followed for making an appointment conforms to the requirements of the law and the accepted norms established over the years that have come to be recognized as Constitutional conventions. It is an appropriate remedy in cases where public has some interest in the controversy that needs to be resolved and is not meant to be invoked purely for protecting interests of a private right i,e, it cannot be used to T question the legality of official acts that a holder of office has performed while in office to which he had no right. Thus this remedy under Article 199(b)(ii) of the Constitution is limited only to examine a right to a public office.
23. An objection as to the maintainability of this petition has been taken on the ground that no proceedings in the nature of quo warranto lie against a Judge of a High Court as under Article 199(5) of the Constitution, High Courts have been specifically excluded from. The definition of "person" and under Article 192 of the Constitution, a High Court means and includes its Chief Justice and all its puisne judges. It was therefore contended that proceedings under Article 199(1)(b)(ii) of the Constitution are not maintainable even against a Judge of a High Court as they do not come within the meaning of "person" as provided in Article 199(1)(b)(ii) of the Constitution.
24. This question of seeking information in .The nature. Of quo warranto against a Judge of a superior Court under Article 199(1) (b) (ii) of the Constitution is now well settled. In the case of Asad Ali versus Federation of Pakistan & others reported in PLD 1998 SC 161, the Supreme Court has held that proceedings calling for information in the nature of quo warranto against a Judge of a superior Court are maintainable under Article 199(1) (b) (ii) of the Constitution. In the said case it was held that the qualification to hold the office of a Judge is personal to the individual and has nothing to do with his performance of duty as a Court or member of the Court. To possess the qualifications prescribed under the Constitution is a sine qua non for an individual to hold the office of a Judge of superior Court. Therefore, when the appointment of a Judge of superior Court is called in question on the ground that he does not possess the prescribed qualifications or his appointment does not fulfil the requirements of the Constitution, the relater is not asking the Court to strike down any of his actions which he has performed or is performing as Judge of a superior Court but is asking to examine his right to hold the office of a Judge of the superior Court. Such a case does not fall within the mischief of the -provision of Article 199(5) of the Constitution.
25. The Hon'ble Supreme Court in Asad Ali's case reported in PLD 1998 SC 161 has also held that independence of judiciary can be secured only through appointment of persons of unimpeachable integrity, high repute and competence, strictly in accordance with the procedure prescribed under the Constitution, to the high offices of the Judges of superior Courts. Any deviation in the method of appointment prescribed under the Constitution (as defined in Judges' case) is likely to shake the public confidence in the institution of judiciary and tarnish its image as a neutral arbiter in disputes between citizen and citizen and citizen and State, thus, infringing the Fundamental Rights of the citizens guaranteed under Article 9 and 25 of the Constitution to have free, fair and equal access to independent Courts and Tribunals. Thus in Asad Ali's case it was held that in case an appointment is found to be in violation of the provision of any Article of the Constitution, then such person is not entitled to hold and continue in office and the appointment can not only V be called in question on the ground that it infringes the Fundamental Rights guaranteed under Article 9 and 25 of the Constitution but information in the nature of quo warranto can also be sought through a petition filed under Article 199(1) 9(b) (ii) of the Constitution.
26. With regard to the argument of Advocate General that in case a Judge of superior Court is not fit to hold his office, Article 209 of the Constitution should be resorted to, we may point out that in Asad Ali's case it was held that the scope of Article 209 is confined to two situations only i,e, incapacity of a Judge to perform his duty of his office and his misconduct. The Supreme Judicial Council cannot grant any relief where there is an illegal and unconstitutional appointment to a superior Court. Hence, the validity and constitutionality of appointment of a Judge of a superior Court is outside the purview of the enquiry under Article 209 of the Constitution as it has no nexus either with the mental or physical incapacity of the Judge to perform the duties of his office or with the misconduct of the Judge. The remedy provided under Article 209 of the Constitution therefore cannot be equated with the proceedings filed under Article 199(1) (b) (ii) of the Constitution to challenge the unconstitutional appointment of a Judge of a superior Court.
27. In Asad Ali's case it was also held that the reason to keep the question of validity or constitutionality of appointment of a Judge of superior Court outside the purview of the enquiry under Article 209 of the Constitution was for the reason that validity of appointment is open to challenge before the High Court under Article 199 (1) (b) (ii) of the Constitution. Therefore, we are of the view that proceedings in the nature of quo warranto against a judge of a superior Court are maintainable under Article 199(1) (b) (ii) of the Constitution and provisions of Article 209 of the Constitution have no application in such matters.
28. In Asad Ali's case it was also held that though it is always desirable that the Judges of superior Court maintain high degree of comity amongst themselves in order to maintain harmony and smooth working of the Courts and also to preserve their institutional image in the eyes of the public but such a desire should not come in the way of discharging the Constitutional' duty imposed upon the Judges of superior Courts to protect and defend the Constitution under the oath of their office.
In case violation of the provision of Constitution is brought to the notice of a Judge of a superior Court in appropriate proceedings which involves the person of another Judge of the same Court, the relief, in the absence of a Constitutional bar, cannot be declined at the cost of maintaining high tradition to have comity amongst the Judges.
II. Constitution of Full Bench:
29. An objection to the constitution of this full bench has also been taken on the ground that while constituting it, the provisions of Rule 12(2) of the Sindh Chief Court Rules (Appellate Side) read with section 12 of Sindh Courts Act, 1926 were ignored. According to the Advocate General, power to constitute full benches is provided in section 12 of the Sindh Courts Act, 1926 which is to be read with Rule 12(2) of the Sindh Chief Courts Rules (Appellate Side). He submitted that under Rule 12(2) one of the two judges of the division bench, which earlier took up this petition for hearing ought to have sat on this bench. Section 12 of Sindh Courts Acts, 1926 reads as follows:
12. Power to refer question to full bench.---Any single judge of the Chief Court and any bench of Judges thereof, not being full bench, may in any case refer for the decision of a bench of two judges or of a full bench, respectively, any question of law or custom having the force of law or the construction of any documents, or the admissibility of any evidence arising before the judge or bench and shall dispose of the case in accordance with the decision of the bench to which the question has been referred: [Provided that nothing in this section shall apply to a judge of the Chief Court exercising the jurisdiction of the Chief Court as the principal criminal Court of original jurisdiction for the sessions division of Karachi.]
30. Then Rule 12 of Sindh Chief Court Rules (Appellate Side) read as follows:
12. Composition of Full Bench.--(1) A full Bench shall consist of any number of Judges not less than three.
(2) When a Bench of two Judges makes a reference under Section 12 of the Act, one of the referring Judges or both may sit as a member or members of the full bench.
31. The circumstances envisaged in the above referred Rule would arise only when single bench refers any question of law or custom or the construction of any documents or the admissibility of any evidence to a bench of two Judges or a division bench refers similar question to a full bench for its decision. This is not the case here. The Chief Justice of this Court exercising his prerogative, passed an administrative order on 1-4-2009 and constituted the present full bench. No question has been referred to this bench so as to attract Rule 12(2) of the Sindh Chief Court Rules (Appellate Side). Even otherwise, when a question is referred to a division bench or to a full bench, Rule 12(2) of the Sindh Chief Court Rules (Appellate Side) only provides that the referring judge or any of the referring judges may sit on the full bench. The language of the Rule 12(2) does not suggest that the referring judge or judges must be member(s) of the full bench. As this full bench was not constituted on the request of a division bench and no question as contemplated by Rule 12(2) has been referred for its decision, the objection as to the constitution of this full bench is not sustainable. Furthermore, the Sindh Court Act, 1926 stood repealed by the Sindh Civil Courts Ordinance, 1962.
III. Locus standi of the Petitioner:
32. As regards the objection that the petitioner has no locus standi to file this petition, Mr. Rasheed A. Razvi referred to memorandum No,3(d) of the Memorandum of Association of the Sindh High Court Bar Association and Rule No, 165 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976. Article 3 (d) read as follows:
3. The aim and objects of the Association are:
(a) ..................................................
(b).......................................................................................
(c) ..................................................
(d) to direct its efforts to uphold the case of independence of judiciary and the Rule of Law.
33. Rule No, 165 of the Pakistan Legal Practitioners and Bar Councils Rules reads as follows:
165. It is the duty of advocates to en deavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of judges. They should protest earnestly and actively against the appointment or selection of persons who are for the Bench and thus should strive to have elevated thereto only those willing to forego which may embarrass their free and fair consideration of the questions before them for the decision. The aspiration of advocates for , judicial positions should be governed by an impartial estimate of - their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves.
34. From the above referred provisions of the Memorandum of Association of the Sindh High Court Bar Association and Rule 165 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 it becomes quite evident that duty of advocates is not limited to their usual obligations towards their clients and the courts but they also have to keep their eyes and ears open and raise their voice whenever an occasion arise in order to ensure that no political interference takes place which may compromise the independence of judiciary. Thus' the above-referred provisions entitle the petitioner, which is a body of advocates, to protest earnestly and actively against the appointment of judges through a process, which is not mandated by. The Constitution and Constitutional conventions. They therefore have every right to call in question any executive action that interferes with the independence of Judiciary. The fact that the petitioner has locus standi in the matter also finds support from this Court's judgment in the case of Sharaf Faridi versus Federation of Pakistan reported in PLD 1989 Karachi 404 wherein the lawyers of Karachi Bar Association and Pakistan Bar Council successfully challenged the powers of appointment, posting, transfers, promotions, removals of members of subordinate judiciary as well as certain appointments and transfer of judges of this High Court. Then in the case of Malik Asad. Ali versus Federation of Pakistan reported in PLD 1998 SC 161, the petitioners of that case were practising advocates who successfully challenged the validity and constitutionality of appointment of a Judge of superior Court and it was held that it was open to challenge before a High Court under Article 199 of the Constitution. The Judges' Case reported in PLD 1996 SC 324 is yet another example where the petition was filed by a person who was an advocate. We are therefore of the view that the petitioner, which is the body of advocates of this High Court has locus standi to file this petition.
IV. De facto doctrine:
35. In Asad Ali's case it has been held that the recognition of the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of public business, to save the public from confusion and to protect private rights which a person may acquire as a result of exercise of power by the de facto holder of the office. While passing short order on 6-5-2009, we had clarified that we have consciously avoided deliberating upon Proclamation of Emergency Order, 2007 and the Oath of Judges Order, 2007 and its ramifications and consequences for the reasons that Mr. Rasheed. A. Razvi counsel for the Petitioner has not pressed the same before us for the reason that these questions are already pending adjudication before the Hon'ble Supreme Court. We therefore shall be examining the consultative process without going into the question whether at the relevant time the de jure Chief Justice of Pakistan was made non-functional. V. Non-justiciability of the recommendations:
36. The maintainability of this Petition has been questioned on yet another ground i,e, the opinion of the Chief Justice of Pakistan is not justiciable. It was argued that as the confirmation of respondent No,3 and extension in the judicial tenures of respondents Nos.4 and 5 have been made on the recommendations of the Chief Justice of Pakistan, whose recommendations are not justiciable, the same cannot be called in question before any Court of law. In support of this contention, reliance was placed by Mr. Aziz Munshi on the case of Supreme Court Bar Association versus. Federation of Pakistan reported in PLD 2002 SC 939.
37. The reasons for which an opinion is said to be not justiciable are these. The office' of the judge of a superior Court is to be filled by best available person and in the process of appointment / confirmation,' a name of a potential appointee may. Come up for consideration against whom any of the two judicial consultees may have certain reservations. Often it happens that while expressing their opinions, the judicial consultees make certain adverse remark about a person whose appointment is being considered. If the judicial consultees' adverse remarks are allowed to be questioned before a Court of law then the judicial consultees would always be reluctant to give their open and forthright opinion as to the suitability and fitness of a person who is being considered for appointment. It was in this context considered necessary that the opinions of the judicial consultees should not be justiciable. Thus, adverse remarks expressed by the judicial consultees in relation to any appointee, under Article 193 and Article 177 of the Constitution, are not open to challenge in a court of law. In the case of Advocate-on Records Association versus Union of India, reported in AIR 1994 SC 268, the reason given for non-justifiability was that it would prevent any inhibitions against expressing a free and frank opinion in the process of selecting a person for the office of a judge. In the case of Supreme Court Bar Association versus Federation of Pakistan reported in PLD 2002 SC 939 our Supreme Court held that if the recommendations are made justiciable, the primacy of the opinion of the Chief Justice of Pakistan will be undermined directly or indirectly, embarrassm ent will be caused to the judicial consultees as well as the recommended, independence of judiciary, smooth working of the Court will be affected and pressure groups will emerge at different levels. It was for such considerations that a carte blanche has to be given to the judicial consultees so that they may give their free and frank opinions without any inhibitions that are not open to challenge in a Court of law. The concept of non-justiciabilty was introduced to protect the judicial consultees from embarrassment. This protection is for the Chief Justice of Pakistan as well as the Chief Justices of the High Courts. However, where an appointment is challenged on the ground that the consultative process lacked constitutional requirements and disregarded the rule laid down in the Judges' Case then this is a situation where the question of non-justiciability does not arise. If this too is not made justiciable then it would not be possible to question an appointment even it was made in violation of the rules laid down in the Judges' Case.
38. The Judges' Case is itself an example that the concept of non-justiciability does not mean that even though the consultative process is found to be deficient, appointment cannot be nullified because it had the approval of the Chief Justice of Pakistan. In the Judges' Case which was decided in 1996, appointments of several judges in three High Courts were declared to be invalid only for the reason that they did not meet the criteria of 'consultation' as provided in the Constitution. We may point out that in the Judges' Case, the original appointments of the affected Judges were backed by the recommendations of a permanent Chief Justice of Pakistan yet the petition was entertained and allowed. Thus it becomes abundantly clear that the concept of non- justiciability was not devised, to protect an appointment that has the approval of the Chief Justice of Pakistan, though it may not be in accordance with the Constitution but it was devised only to provide a blanket cover to the judicial consultees so that while considering appointments under the Constitution, they may give their free and frank opinion about an appointee without any inhibitions and without putting up with the embarrassment that is bound to come in case the adverse remarks made in their opinions are challenged in some legal proceedings.
39. As the remarks that are made in relation to an appointee by a judicial consultees under Articles 177 and 193 of the Constitution are not justiciable, we vide order dated. 28-4-2009 expunged all averse remarks made against respondent No, 3 to 5 in this petition that were said to have been expressed by the Chief Justice of this High Court in his opinion. We shall be examining the opinions of the judicial consultees only for the limited purpose to form our opinion on the question whether in the confirmation of respondent No, 3 and extension in the judicial tenures of respondent Nos. 4 & 5, the consultative process was carried out as is required to be undertaken under Articles 193 of the Constitution and defined by our Supreme Court in its various judgments, most particularly the Judges Case.
VI. The Consultative process:
40. We shall now proceed to examine the process of confirmation of respondent No,3 and extensions in the judicial tenures of respondent No,4 and 5 in the light of the following question that we framed on 27-4-2009.
"Whether in the matter of recommendation, extension, confirmation or otherwise of Respondents Nos.3 to 5, there was consultation by and between the constitutional consulted within the contemplation of Articles 193 and 197 of the Constitution of Islamic Republic of Pakistan, 1973, as expounded by the Honourable Supreme Court of Pakistan in the cases of Al-Jehad Trust (PLD 1996 SC 324), Malik Asad Ali (PLD 1998 SC 161), Ghulam Haider Lakho (PLD 2000 SC 178) and the Supreme Court Bar Association (PLD 2002 SC 939)".
41. The method of appointment of a Judge or an additional Judge of a High Court is the same i,e, the one that is provided in Article 193 of the Constitution. Article 193 provides that appointment of a Judge of a High Court is to be made by the President after consulting with (a) the Chief Justice of Pakistan, (b) the Governor concerned, and (c) the Chief Justice of the concerned High Court (except where the appointment is that of the Chief Justice of the High Court itself).
42. The Judges' Case recognizes the importance of consultations in the whole process of appointment of Judges to the superior Courts and therefore the term 'consultation' was given an extensive and elaborate meaning. Justice Sajjad Ali Shah in his opinion in Judges' Case at pages 405 paragraph 82 held as follows:
82. We are interpreting the word 'consultation' to widen and enlarge its normal scope for the reasons, firstly, that the Constitution-makers have not debated this word 'consultation' and fixed its parameters. Secondly, we would like to assign meaning to `consultation, which is consistent and commensurate with the exalted position of Judiciary as is envisaged in. Islam. Thirdly, we would like to given positive interpretation to `consultation' which promotes independence of Judiciary.
Executive may have the last word and may issue notification of appointment, but cannot give loose interpretation to the word `consultation' to ignore or brush aside expert opinion of Chief Justice of the High Court and the Chief Justice of Pakistan. Fourthly, the President is administered oath by Chief Justice of Pakistan as required under Article 42 of the Constitution and the Chief Justice of Pakistan administers oath to other Judges of the Supreme Court and Chief Justice of Province administers oath to Judges of his High court as contemplated under Articles 178 and 194 respectively, which shows that both the Chief Justices are heads of their institutions and their opinion in their own field of expertise should not be treated lightly particularly when they are constitutional consultees and the appointments are also being made of the Judges within the Constitutional scheme. (Underlining is ours to lay emphases)
43. From the above quoted passage of the Judges' Case it is quite evident that the word 'consultation' was given wider and enlarged meaning keeping in view the fact that appointments relate to the exalted position in the judiciary that has to function independently. It was for this reason felt that no room should be left for political considerations in the appointment of Judges as it would then compromise on the requisite credentials, which judges of superior Court must possess. To achieve this objective, importance of the opinion of the Chief Justice of the High Court to which appointments are to be made was recognized along with the opinion of the Chief Justice of Pakistan. It was held that as the opinion of both the judicial consultees being expert opinion, in case they (any of them) find a person not fit and capable to be appointed as Judge of a High Court then the executive must not act against such advice.
44. Justice Ajmal Mian while rendering his opinion in the Judges' case made following observations which start from the last paragraph at page 490 of the Judges Case: "The object of providing consultation inter alia in Articles 177 and 193 for the appointment of Judges in the Supreme Court and in the High Courts was to accord Constitutional recognition to the practice/convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Federal Court, which was obtaining prior to the independence of India and post independence period, in order to ensure that competent and capable people of known integrity should be inducted in the superior judiciary which has been assigned very difficult and delicate task of acting as watch dogs for ensuring that all the functionaries of the State act within the limits delineated by the Constitution and also to eliminate political considerations. Mohtarma Benazir Bhutto, as the then Leader of the Opposition, while making a speech on 14-5-1991 on Shari'ah Bill in thq National Assembly, had rightly pointed out that the power of appointment of Judges in the superior Courts had direct/nexus with the independence of judiciary. Since the Chief Justice of High Court concerned and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations, as pointed out hereinabove, have been consistently accepted during pre-partition days as well as post-partition period in India and Pakistan. I am, therefore, of the view that the words "after consultation" referred to inter alia in Articles 177 and 193 of the Constitution involve participatory consultative process between the consultees and also with the Executive. It should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or unfair play. The Chief Justice of a High Court and the Chief Justice of Pakistan are well equipped to assess as to the knowledge and suitability of a candidate for judgeship in the superior Courts, whereas the Governor of Province and the Federal Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct. I will not say that anyone of the above consultees/functionaries is less important or inferior to the other.
All are important in their respective spheres. The Chief Justice of Pakistan, being Paterfamilias i,e, head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely, his views deserve due deference. The object of the above participatory consultative process should be to arrive at a consensus to select best person for the judgeship of a superior Court keeping in view the object enshrines in the Preamble of the Constitution, which is part of the Constitution by virtue of Article 2A thereof, and ordained by our religion Islam to ensure independence of Judiciary
45. The above quoted passage from the opinion of Justice Ajmal Mian in the Judges' Case accords constitutional recognition to the convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Pakistan in the appointment of Judges to the Federal Court now Supreme Court and the High Courts that was in vogue prior to the independence and continued since then. It was considered that continuation of such convention would result induction of competent and capable people of known integrity in the superior D judiciary which is assigned very delicate task to ensure that all the functionaries of the State act within the limits delineated by the Constitution and close the doors for making appointments on political consideration. It was held by .Justice Ajmal Mian that the words "after consultation" referred to inter alia in Articles 177 and 193 of the Constitution involve participatory consultative process between the judicial consultees and executive consultees as both the set of consultees are well equipped in their specific spheres to assess the suitability of a candidate for judgeship in the superior Courts and none of the consultees is less important or inferior to the other.
46. Then at pages 492 of the Judges' case starting from first paragraph, Justice Ajmal Mian further observed as follows: "The views of none of consultees can be rejected arbitrarily in a fanciful manner.--I am further inclined to hold that the views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan cannot be rejected arbitrary for extraneous consideration and if the Executive wishes to disagree with their views, it has to record strong reasons which will be justiciable, I am also inclined to hold that a person found to be unfit by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for appointment as a Judge of a High Court or by the Chief Justice of Pakistan for the judgeship of the Supreme Court cannot be appointed as it will not be a proper exercise of power to appoint under the above Articles of the Constitution.
It may be stated that there seems to be unanimity of view among the learned counsel appearing for the parties and the learned counsel appearing as amicus curiae that consultatory process is mandatory and without it no appointment/confirmation can be made. It must follow that in absence of consultation as contemplated and interpreted by this Court as above, the appointment/confirmation of a Judge in the superior Court shall be invalid. The above view which I am inclined to take is in consonance with the well established conventions, Islamic concept of "Urf" and the proper exercise of power." (Underlining is ours to lay emphases)
47. In the above passages quoted from the Judges' Case, Justice Ajmal Mian has been very categorical that the views of none of consultees can be rejected arbitrarily and in fanciful manner.
It was also observed that a person found unfit to be Judge of the High Court by the Chief Justice of the High Court concerned or the Chief Justice of Pakistan then he cannot be appointed by the President 'as it will not be a proper exercise of power under Article 193 of the Constitution. It was also held that the consultative process is mandatory and without it no appointment/confirmation can be made and in absence of consultation as contemplated and interpreted by the Supreme Court (in Judges' Case) the appointment or confirmation of a Judge in the superior Courts shall be invalid.
48. Thus it is quite evident that while making appointments to the superior Courts, there is no room for arbitrariness. When a judge of a High Court is to be appointed, the Chief Justice of Pakistan and the Chief Justice of the concerned High Court have to first arrive at a consensus on the appointment of a recommended by engaging themselves in a participatory consultative process.
The final opinion so reached is then forwards by the Chief Justice of Pakistan to the executive. The adoption of such procedure is mandatory. Failure to do so would F invalidate the appointment or confirmation of a Judge as it would not be F regarded as an outcome of an effective, meaningful and consensus oriented consultations.
49. We have also noticed that in the Judges' Case, our Supreme Court has acknowledged the fact that the Articles of our Constitution, which pertain to the appointments of superior Court Judges have been lifted from the Indian Constitution with minor variations. Therefore, while interpreting the provisions of our Constitution, the fact as to how similar provisions were interpreted by the Indian Supreme Court were held to be relevant by our Supreme Court in the Judges' Case. In the Judges'
Case reference has specifically been made two Indian cases i,e, S.P. Gupta versus Union of India reported in AIR 1982 SC 149 and Supreme. Court Advocates-on-Record Association versus Union of India reported in AIR 1994 SC 268 as they were found to be relevant by our Supreme Court. Mr. Khalid Anwar, learned amicus curiae has also referred to various passages from the Advocates- on-Record case that have been reproduced in the Judges' Case which are helpful in specifically dealing with the controversy involved in the present case.
50. While giving importance to minority view expressed in S.P. Gupta's case our Supreme Court quoted a passage from the said case in the last part of paragraph 33 at page 445 of the Judges'
Case which is follows: it is true that the Chief Justice of India is the head of the Indian Judiciary and may be figuratively paterfamilias of the brotherhood Judges but the Chief Justice of a High Court is also an equally important Constitutional functionary 'and it is not possible to say so far as the consultation process is concerned, in any way, less important than the Chief justice of India..." (Underlining is ours to lay emphases)
51. Then at page 447 of the Judges' Case while dealing with the issue of primacy following extract from Advocate-on-Record case was quoted.
480. However, it needs hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion.
' He concluded as under:--
501. The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high. Constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The hereinafter mentioned norms emerging from the actual practice and crystallized into conventions not exhaustive - are expected to be observed by the functionaries to regulate the exercise of their discretionary powers in the matters of appointment and transfer.
Appointment:
(1) What is the meaning of the opinion of the judiciary symbolised by the view of the Chief Justice of India?
' This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior most Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate,- by reason of the fact that he has come from the same High Court, or otherwise. Article 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion.
This provision in Article 124(2) is the basis for the existing convention, which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation.
This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
' In matters relating to appointments in the igh Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior most Judges of the High Court.
' The Chief Justice of India, for the formation of his opinion, has to adopt a course which would enable him to discharge his duty objectively to select the best available person as Judges of the Supreme Court and the High Courts. The ascertainment of the opinion of the other Judges by the Chief Justice. Of India and the Chief Justice of the High Court, and the expression of their opinion, must be in writing to avoid any ambiguity.
52. Again at page 450 of the Judges' Case following extract from Indian judgment in Advocates- on- Record case was quoted.
("8) Some instances when non-appointment is permitted and justified may be given. Suppose the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommendee is unsuitable for stated reasons, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible. Similarly, when the recommendation is for appointment to a High Court, and the opinion of the Chief Justice of the High Court conflicts with that of the Chief Justice of India, the non- appointment, for valid reasons to be recorded and communicated to the Chief Justice of India, would be permissible. If the tenure as a Judge of the candidate is likely' to be unduly short, the appointment may not be made. Non- appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible. The condition of health or any such factor relating to the fitness of the candidate for the office, may also justify non-appointment.
(9) In order to ensure effective consultation between all the Constitutional functionaries involved in the process, the reasons for disagreement, if any, must be disclosed to all others, to enable reconsideration on that basis. All consultations with everyone involved, including all the Judges consulted, must be in writing and the Chief Justice of the High Court, in the case of appointment to High Court, and the Chief Justice of India, in all cases, must transmit with his opinion, the opinions of all Judges consulted by him, as a part of the record.
' Expression of opinion in writing is an inbuilt check on exercise of the power, and ensures due circumspection. Exclusion of justiciability, as indicated hereafter, in this sphere should prevent any inhibition against the expression of a free and frank opinion. The final opinion of the Chief Justice of India, given after such effective consultation between the Constitutional functionaries, has primacy in the manner indicated.
(10) To achieve this purpose and to give legitimacy and greater credibility to the process of appointment, the process must be initiated by the Chief Justice of India in the case of the Supreme Court, and the Chief Justice of the High Court in the case of the High Courts. This is the general practice prevailing, by convention, followed over the years, and continues to be the general rule even now, after S.P. Gupta.
53. The above passages from the Indian case of Advocate-on-Record which have also been reproduced in the Judges' Case and referred to by Mr. Khalid Anwar, clearly show that though the Chief Justice of the Supreme Court is head of the entire Judiciary and may be figuratively paterfamilias of the brotherhood of Judges but the Chief Justice of a High Court is also an equally important constitutional functionary when it comes to the appointment of Judges of the High Courts and in the entire consultative process it cannot be said that, in any way, his role is less important than the role of the Chief Justice of the Supreme Court.
VII. Primacy of opinion:
54. Constitution has not envisaged giving primacy to the opinion of any individual judicial consultee in the matter of appointment of Judges to the High Courts. As discussed above, in the matter of appointment of High Court Judges, the opinion has to be formed by both the judicial consultees collectively. When such an opinion is, formed, the Chief Justice of Pakistan forwards the same to the executive. When this collective opinion comes in conflict with the opinion of the executive it has to be given primacy for the reason that the Chief Justice of High Court concerned and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship. They are well equipped to assess the knowledge and suitability of a person who is being considered for appointment as a judge. This has been so held by Justice Ajmal Mian in the last paragraph at page 490 of the Judges Case.
55. The decision in the Judges' case is itself an example of the vital role that has been assigned to the Chief Justice of the High Court in the entire process of appointment of High Court Judges. In Judges' case, the appointment of Judges in three High Courts i,e, this. High Court, Lahore High Court and Peshawar High Court were declared to be invalid only for the season that they were appointed on the recommendations of the Acting Chief Justices of the High Court instead of permanent Chief Justices. Several appointments of the High Courts were invalidated and the process was ordered to be held de novo through the permanent Chief Justices of the respective High Courts. This decision in the Judges' case was given in spite of the fact that the original appointment of the affected judges were backed by the recommendations of permanent Chief Justice of Pakistan. Had there been primacy of the opinion of the Chief Justice of Pakistan over the opinion of the Chief. Justice of the High Court, the Judges' case would not have nullified the appointments.
56. Wherever it is stated in Judges' Case that the opinion of the Chief Justice of Pakistan has primacy, in so far as it relates to the appointment of High Court Judges, it means primacy of the common opinion collectively formed by both the judicial consultees over the opinion of the executive. The reason for stating that opinion of the Chief Justice of Pakistan has primacy is because the collective opinion is finally forwarded by the Chief Justice of Pakistan to the appointing authority i,e, the President. When this collective opinion comes in conflict with the opinion of the executive then it has to be given primacy over the opinion of the executive in order to preserve independence of the judiciary. In such a situation if the executive do not wish to appoint the recommendee on account of negative opinion about his antecedents, the executive is bound to give reasons for that, whereas no reasons are required to be given by the judicial consultees for their negative opinion about a recommedee. It is for this reason that Justice Ajmal Mian at page 492 of the Judges Case observed "....a person found to be unfit by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for appointment as a Judge of a High Court or by the Chief Justice of Pakistan for the judgeship of the Supreme Court cannot be, appointed as it will not be a proper exercise of power to appoint under the above Articles of the Constitution".
Therefore, in case a person is found to be unfit for appointment by the Chief Justice of the High Court concerned or the Chief Justice of Pakistan then he cannot be appointed as it will not be a proper exercise of power under Article 193 of the Constitution. This restriction on the powers of the appointing authority not to appoint a person who has not been recommended by either of the two judicial consultees gives primacy to their opinion over the opinion of the executive. Thus the negative opinion of any of the judicial consultees cannot be ignored , by the executive in any circumstances.
VIII. The past Conventions:
57. In the Judges' case as well as in Asad Ali's case due recognition has been given to the Constitutional conventions which are enforceable as if they are provisions of the Constitution itself.
In the matter of appointments of Judges, guidance has be taken from well established conventions, which have dealt with similar situations in the past. In the past there had never been a situation when the Chief Justice of this Court had not recommended confirmation of an Additional Judge yet the Chief Justice of Pakistan in disregard of such negative opinion has recommended his confirmation without first seeking reconsideration of the negative opinion of the Chief Justice of the High Court. In the year, 1998 when confirmation of Mr. Mushtaq Ahmed Memon, who was then an Additional Judge of this Court, came up for consideration, the Chief Justice of this Court recommended extension in his judicial tenure only, whereas the Chief Justice of Pakistan was of the view that Mr. Memon deserves to be confirmed. The Chief Justice of Pakistan referred the matter back to the Chief Justice of this Court to consider confirmation of Mr. Memon instead of giving him further extension in his judicial tenure. After reconsidering his earlier opinion, the Chief Justice of this Court changed his earlier opinion and recommended Mr. Memon's confirmation and only thereafter the Chief Justice of Pakistan forwarded Mr. Memon's name to the executive for confirmation. Keeping this past convention before us, which falls within the meaning of consultative process as defined in the Judges, Case, we are of the opinion that in a case where the Chief Justice of a High Court gives negative opinion about a person and the Chief Justice of Pakistan holds a positive opinion then it is all the more necessary that the matter be referred back to the Chief Justice of the High Court for reconsideration and only after reaching consensus, recommendations be sent to the anointing authority.
IX. Examining the disputed appointments: 58.In the matter of confirmation of Additional Judges of the High Courts, the procedure that is followed is that before the judicial tenure of an additional Judge of a High Court expires, the Chief Justice of the concerned High Court decides (a) whether or not to recommend him for confirmation or (b) whether his tenure needs to be extended for a further period and the question of confirmation be deferred till then. The Constitution has specifically assigned a consultative role to the Chief Justices of the High Courts in the entire process of appointment of judges/additional judges to their respective High Courts. The object of having consultations between the Chief Justice of a High Court and Chief Justice of Pakistan is to appoint such persons who are fit and suitable to hold the office of the High Court Judge and about whom there are no differences of opinion about his fitness and suitability. Differences on the fitness and suitability of a person makes him controversial. In such circumstances it is better not to appoint a controversial person who though may be otherwise fit to be appointed as a judge. This is so because both the judicial consultees have been collectively entrusted with the obligation to appoint such persons whose credentials to hold the office of judge are beyond reproach. When there is collective responsibility then there is no room for arbitrariness. Appointing a person about whom there are reservations in the mind of any of the two judicial consultees is certainly going to create an adverse perception among the lawyers' community as well as among the public which may shatter confidence in the judiciary.
59. Therefore, in case the Chief Justice of the High Court gives his K negative opinion and does not recommend confirmation or extension in K the judicial tenure of an additional Judge and on the other hand the Chief Justice of Pakistan is of the opinion that the Additional Judge deserves to be confirmed then both the judicial consultees must engage themselves in further consultations. The two judicial consultees must discuss on the point of their differences and reach at some consensus. It is only after reaching consensus that the Chief Justice of Pakistan forwards the final opinion to the executive. In this manner, the final opinion that is communicated by the Chief Justice of Pakistan to the executive is not merely his individual opinion but an opinion that is formed collectively by both the judicial consultees after engaging themselves in consultative process. The main object of having consensus-oriented consultations could only be achieved if such a course is adopted.
60. In Asad Ali's case the Hon'ble Supreme Court held that any deviation in the method of appointment prescribed under the Constitution and defined in the Judges' case is likely to shake the confidence of the L public in the institution of judiciary and tarnish its image as the neutral arbiter in disputes between citizen and citizen and citizen and State and therefore such deviation would vitiate the right to hold office.
61. We have already held that any adverse remarks expressed in relation to any person by any of the judicial consultees in the course of the consultative process is not open to judicial scrutiny and hence not justiciable.. What is open to judicial scrutiny is the propriety and legality of the consultative process which if found to be deficient on the touchstone of the provisions of our Constitution (as defined in the Judges' case and practised through well established Constitutional conventions) would lead to invalidating the appointment. Therefore, all that needs to be examined in this case is whether the consultative process that took place amongst the four constitutional consultees in relation to respondent Nos. 3 to 5 falls within the meaning of the term "consultation" as defined by the Supreme Court in the Judges' Case and whether the well established Constitutional conventions were respected.
62. Upon examining the record, we have noticed that the confirmation of respondent No,3 as a permanent Judge and extension in the judicial tenure of respondent No,4 as Additional Judge took place in complete departure from the past conventions in that Justice Abdul Hameed Dogar acting as Chief Justice of Pakistan altogether ignored the opinion of the Chief Justice of this Court which the latter gave in relation to respondents Nos.3 and 4. From the record we have noticed that the Chief Justice of this High Court in his opinion dated 4-12-2008 recommended extension in the judicial tenures of respondents Nos,3 and 5 only. With regard to respondent No,4, the Chief Justice of this Court expressed negative opinion about him. And neither recommended his confirmation nor extension in his judicial tenure. The Governor however in his opinion dated 11-12-2008 recommended confirmation of respondent No,3 and extension in the judicial tenures of respondents Nos.4 and 5. On receiving both the recommendations on 12.12.2008, Justice Abdul Hameed Dogar on the very same day recommended confirmation of respondent No,3 and extension in the judicial tenures of respondents Nos. 4 and 5. This opinion of Justice Abdul Hameed Dogar was clearly in conflict with the opinion of the Chief Justice of this Court in so far as respondents Nos. 3 and 4 were concerned, yet without first having any further consultations with the Chief Justice of this Court, Justice Abdul Hammed Dogar forwarded his opinion to the executive. When the Chief Justice of this Court had neither recommended confirmation of respondent No,3 nor recommended extension in the judicial tenure of respondent No,4, then there ought to have been further consultations in order to reach at some consensus. There is nothing on record to show that any attempt was made towards this direction. When consultation is a constitutional requirement then it cannot be treated as a mere formality. The whole object of appointment through consultative process would be defeated if even after the differences in the opinions of the two judicial consultees, no further consultations take place between them. In the present case, there was total absence of having any further consultations with the Chief Justice of this High Court in spite of the differences in the two opinions. Thus the consultative process lacked basic requirements of the 'consultations' as defined in the Judges' case and thus the confirmation of respondent No,3 and extension in the judicial tenure of respondent No,4 was in complete violation of the rules laid down in the Judges' case.
63. In the Judges' Case, the Hon'ble Supreme Court has also held that though the President has sole power to appoint Judges but the opinion of the consultees, particularly of the Chief Justice of the High Court and the Chief Justice of Pakistan, who are supposed to be experts in the field of law in which the appointment is to be made, cannot be ignored. The Judges' Case recognizes the fact that the Chief Justice of the High Court and the Chief Justice of Pakistan normally know the advocates who appear in their Courts regularly and therefore, they would recommend names of such advocates who are capable and fit to be judges of the High Court. It is in this context that their opinions, which is expert opinion in a way, cannot and should not be ignored. Then some of the elevations to the High Courts are made from the subordinate judiciary as well. The Chief Justice of the concerned High court is in a better position to know the performance and capabilities of the judges of the subordinate judiciary by virtue of Article 203 of the Constitution. This Article entrusts the concerned High Court with the responsibility to supervise and control all courts subordinate to it. The Chief. Justice of the concerned High Court is in direct contact with the District Judges O and is aware of their performances as judges. The Chief Justice of the concerned High Court therefore is in best position to know their potential and capability to become judges of the High Court. In this background, the opinion of the Chief Justice of the concerned High Court gains immense importance when it comes to the appointments that are to be made to his High Court. The negative opinion of both the judicial consultees has to be respected. It is for this reason held in the Judges Case that in case the executive gives negative opinion about a person for reasons of his improper antecedents in whose favour the Chief Justice of the High Court and the Chief Justice of Pakistan have given their positive opinion the executive may not appoint such person but it has to give strong reasons for that. On the other hand the executive cannot appoint a candidate for judgeship if the Chief Justice of the High Court or the Chief Justice of Pakistan have given negative opinion. In the entire process of appointment and/or confirmation of High Court Judges, the opinion of the Chief Justice of a High Court is of vital importance. Ignoring his opinion would amount to treating his opinion as a mere formality.
64. Whenever differences as to suitability and fitness arise about a person between the two judicial consultees, attempt should be made to reach at some consensus. If no consensus is reached then the executive cannot appoint such a person, as it would not be a proper exercise of power under Article 193 of the Constitution. Then to maintain transparency, the entire consultative process must also be reflected from the record i,e, it should be in writing. The executive cannot choose from any of the two diverse opinions of the judicial consultees and appoint a person which the executive deems fit. The executive can only vouch for the antecedents of a person, which too are justiciable.
Appointing a person that is likely to give rise to controversy should always be avoided at all costs.
Disregard of this principle, which has its root in the time- honoured conventions, would defeat the very object for which the consultative process was devised in the Constitution and defined in the Judges' Case.
65. It was also argued that as the respondent No,3 was administered oath by the very same Chief Justice of this Court who had not recommended his confirmation therefore legal infirmity if any stood cured. Suffice is to state that there is no estoppel against the law or the Constitution. Oath by itself could not cure the defect that was left in the consultative process, which is a mandatory requirement of the Constitution. No consultee possesses exclusive role in the appointment of a High Court Judge. If the Chief Justice of this Court gave oath to respondent No,3 on account of issuance of notification by the appointing authority, it does not mean that the consultative process that originally lacked validity under the Constitution would become valid. The obligation to have effective, meaningful, purposive and consensus oriented consultations before final recommendations are sent to the executive for consideration had to be discharged in the light of the time-honoured past conventions and the rules laid down in the Judges' case. Therefore giving oath is secondary which would not cure the inherent defect in the entire process of confirmation of respondent No,3.
66. What has emerged from the above discussion with regard to the controversy involved in this case can be summarized as follows:
(i) It is time honoured constitutional convention that the process of appointment of a High Court Judge is initiated by the Chief Justice of the concerned High Court and the recommendation for appointment is finally forwarded to the appointing authority by the Chief Justice of Pakistan and this is done only after both the judicial consultees have reached consensus by engaging themselves in a participatory consultative process.
(ii) The norms that have emerged from the time honoured constitutional conventions have to be respected in the entire consultative process. Guidance has to be taken from the well-established constitutional conventions, which have dealt with similar situations in the past. Appointing a person that may give rise to controversy should be avoided at all costs. Disregard of this principle, which has its root in the time-honoured conventions, would defeat the very object for which the consultative process was devised in the Constitution and defined in the Judges' case.
(iii)In the Judges case (PLD 1996 SC 324) wherever there is reference to the opinion of "the Chief Justice of Pakistan and the Chief Justice of the High Court", the word "and" appearing in the said phrase it is to be read to mean the opinion which both the judicial consultees have collectively formed with regard to the suitability and fitness of a person.
(iv) Wherever it is stated in the Judges' case that the opinion of the Chief Justice of Pakistan has primacy, in so far as it relates to the appointment of High Court Judges, it refers to the opinion that is collectively formed by both the judicial consultees with consensus that has primacy over the opinion of the executive consultees.
(v) When the Chief Justice of the High Court in his opinion expresses disapproval of any person to be appointed as Judge and on the other hand the Chief Justice of Pakistan finds such person to be suitable for appointment then the record must reflect that further consultations were held between them to sort out the differences. Without addressing the differences in the two opinions, the purpose of having meaningful and effective consultations could never be realized.
(vi) In order to ensure effective consultations between the Judicial consulates, the reasons for disagreement, if any, must be disclosed to the other for reconsideration.
(vii) Where the differences between the Chief Justice of Pakistan and Chief Justice of the High Court remain, in spite of an attempt to sort them out, then appointment should not be made as it would not be in the best interest of the judiciary to appoint a controversial person.
(viii) The Chief Justice of Pakistan and the Chief Justices of High Courts are head of their respective institutions and therefore if any of them find a person not fit and capable to be appointed as a Judge of the High Court then the executive cannot disregard such negative opinion and must not appoint a controversial person as it would not be proper exercise of power under Articles 193 and 197 of the Constitution.
(ix) In case the executive wishes to disagree with the positive opinions of the judicial consultees on account of its negative opinion about the antecedents of a person, it has to give strong reasons, which shall be justiciable but the executive cannot appoint a person in case the Chief Justice of the High Court or the Chief Justice of Pakistan has given negative opinion about his suitability and fitness.
(x) In order for the consultative process to be credible and transparent, it should always be in writing and must form part of the record, as the appointment of judges to the superior Courts is too important a matter to be left to speculation and conjectures.
(xi) The concept of non-justiciability was devised only to provide a carte blanche to the judicial consultees so that they, while considering appointments under the Constitution, may give their free and frank opinion about a person, without any inhibitions and without putting up with the embarrassm ent that is bound to come, in case the adverse remarks made in their opinions are made justiciable and allowed to be challenged through representations and legal proceedings.
(xii) What is open to judicial scrutiny is the propriety and legality of the consultative process which if found to be deficient on the touchstone of the provisions of our Constitution as defined in the Judges' case) and the well-established constitutional conventions, would invalidate the appointment.
67. In view of the above discussion, we are of the opinion that in order for a consultative process to be in line with the constitutional requirements and well established constitutional conventions, no appointment, confirmation or extension in the judicial tenure of an additional Judge of High Court could be valid if the Chief Justice of the concerned High Court has not given his positive recommendations in the matter or revised his earlier negative recommendations.
68. In the end, we thank the learned counsel for the parties as well as the amici curiae for rendering their valuable assistance to this Court, which enormously helped us in deciding the controversy involved in this case.
69. We allowed this petition by passing following short order on 6-5-2009.
SHORT ORDER.
' We have heard all the learned counsel for the parties, learned Attorney General for Pakistan, learned Advocate General of Sindh and learned Amici Curiae in the matter. For the reasons to follow later this Petition is disposed of in the following terms; (1). The Petition challenging the right to hold office of a Judge of this Court is maintainable under Article 199 (1) (b) (ii) of the Constitution of Islamic Republic of Pakistan 1973, (2). As the consultation with regard to the confirmation and or extension of a Judge of the High Court by the President/Executive with the consultees mentioned in the Articles 193 and 197 of the Constitution of Islamic Republic of Pakistan, 1973 read with definition of consultation under Article 260 of the Constitution has to be effective, meaningful consensus oriented, purpose and therefore, any appointment, confirmation and or extension in disregard of these principles shall be violative of the Constitution and the well established constitutional conventions shall be invalid.
' As the above procedure was not adhered to in the matter of confirmation and extension of Respondents Nos.3 and 4 respectively, we therefore hold that;
(a) The confirmation of Respondent No, 3 as a Judge of this Court is hereby treated as an extension in his tenure as an Additional Judge of this Court as recommended by the Chief Justice of this Court for a period of one year from the date of T expiry of his tenure as mentioned in the notification dated 14-12-2007 .
(b) As retard Respondent No,4 we are of the view that the Chief Justice of this Court did not recommend his name, hence extension in his tenure being violative of the Constitution is declared invalid.
(c) As regard Respondent 5 there is no disagreement of opinion by and between all the constitutional consultees, therefore the Petition as against Respondent No,5 is dismissed. We however find it necessary to clarify that we have consciously avoided deliberating upon Proclamation of Emergency Order, 2007 and the Oath of Judges Order, 2007 and its ramifications and consequences firstly for the reasons that the said question is before Honourable Supreme Court and secondly Mr. Rasheed A. Razvi counsel for the petitioner has not pressed said ground before us for the limited purposes of decision in the instant petition.
70. The above are the reasons for the short order that we passed on 6-5-2009.
(Sd.) Faisal Arab, J I agree and have added a note.
(Sd.) Mushir Alam, J I agree (Sd.) Khilji Arif Hussain, J ' MUSHIR ALAM, J.---(1) I had the privilege to go through the considered and well reasoned opinions 'handed down by my learned brothers Justice Gulzar Ahmed and Justice Faisal Arab covering all aspects of the matter argued before us, I appreciate the manner in which sensitive and complicated issues have been dealt with ease and eloquence by my learned brothers. I could do no better. With the due deference slightly to the extent narrated herein; with regard to inter se primacy of opinions of two judicial consultees and the options exercised by the President dealt with by my learned brother Justice Gulzar Ahmed, I concur with rest of the reasoning and conclusions drawn by both the learned brothers on all fours.
(2) Reaping the wisdom from J.S. Verma, J's lucid opinion, in the case of S.C. Advocates on Record Association v. Union of India AIR 1994 SC 268 para 501 @ pages 438, and approved in Presidential Reference AIR 1999 SC 1, I would only like to add that the disagreement of Chief Justice of Pakistan with the recommendation of Chief Justice of High Court is not something unusual in the context of appointment, extention or confirmation of a Judge of High Court and instances have been quoted by my learned brothers. It is but past of the healthy consultative process aiming at arriving at consensus amongst the judicial consultees. In case the Chief Justice of Pakistan disagrees with the opinion of the Chief Justice of High Court in the matter of appointment, extention or confirmation or otherwise of a Judge of High Court for any good reasons same may be disclosed to the Chief Justice of concerned High Court to enable him to reconsider his recommendation. If the Chief Justice of concerned High Court still does not deem it necessary to review his opinion as regards non-recommendation either for appointment, extention or non-confirmation of a Judge as the case may, be, and he maintains his opinion, then non-appointment, non-extention or non- confirmation of that person as a Judge of High Court for reasons to be recorded by the President is permissible in the public interest. If the non-appointment, non-extention or non-confirmation in rare case, on this ground, turns out to be a mistake, in the ultimate public interest is less harmful than a wrong appointment. One can very well imagine the devastating and far reaching consequence of wrongful appointment and the judiciary of Pakistan has suffered immensely on this count.
(3) We had the rare opportunity to peruse the past record of appointment, extention and or confirmation of judges of this Court, which shows that the candidate who was not recommended for - appointment, extention or confirmation as a judge of this Court by the Chief Justice of Pakistan for appointment, extention or confirmation as a judge of this Court. Instant case appears to be solitary exception in-deviation from the established and past conventions in the subject- matter, at least of this Court.
(4) In event of disagreement between the Judicial Consultee, Chief V Justice of Pakistan has option to initiate participatory consultative and V consensus-oriented process, through exchange of correspondence or may invite the Chief Justice of concerned High Court and engage into integrated participatory consultative process for selecting the best of the best and most suitable person available for appointment. In event of consensus inter se judicial consultee cannot be arrived at, and a person is opined to be unfit by the Chief Justice of the concerned High Court for the judgeship of the High Court, such person should not be recommended for appointment, extention and or confirmation by the Chief Justice of Pakistan. From the record made available to us on the subject-matter, it appears that the President acted mechanically, without application of mind in post haste in issuing the notification on the very date of receipt of recommendation, without making any conscious effort to encourage consensus amongst the two judicial consultees.
(5) Role of the President in the appointment of Judges of superior Courts should not be taken lightly to be merely ceremonial, mechanical, or executive; it is solemn constitutional duty of vital importance, which must be performed and discharged objectively, impartially with due deferance, seriousness and conscious application of mind, in its true spirit to maintain the independence, dignity and majesty of the Judiciary, the pivotal pillar of the State and with the object to select the best of the best and most suitable person for the judgeship of superior Courts.
(6) If the President/Executive appoints a candidate found to be unfit and unsuitable for the judgeship of the High Court by either of the two judicial consultees, it will not be a proper exercise of important and solemn constitutional authority, under the Articles 175(3), 193, 197 read with Article 260 of the Constitution.
(7) Non-adherence to the constitutional duty cast upon the President/Executive, and non- observance of mandatory consultative procedure as noted above, amounts to abdication in discharge of its important and constitutional duty. If the President/Executive appoints a candidate found to be unfit and unsuitable for the judgeship of the High Court by either of the two judicial consultees, it will not be a proper exercise of power under the relevant Articles of the Constitution and is always justiciable and amenable to judicial review by superior Courts for the simple reason that mandatory procedure of meaningful, consensus oriented and purpose consultation was not adhered to.
(8) (Sd.) Mushir Alam, J .