ANWAR ZAHEER JAMALI, J.---By these two civil petitions of identical nature, Federation of Pakistan, through its Secretary, Ministry of Law, Parliamentary Affairs and Justice, seek leave to appeal against the judgment dated 11-6-2012, passed by a larger bench of the High Court of Sindh at Karachi ("High Court") in Civil Petitions Nos.D-3125 of 2011 and D-3286 of 2011, whereby these petitions filed by the Sindh High Court Bar Association, Sukkur and the Sindh High Court Bar Association, Karachi, respectively, challenging the decision of the Parliamentary Committee ("the Committee") constituted under Article 175-A of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") regarding non-confirmation/non-approval of the names of two recommendees of the Judicial Commission of Pakistan ("the Commission") formed under Article 175-A of the Constitution, in respect of Mr. Justice Ghulam Sarwar Korai and Mr. Justice Irfan Saadat Khan were allowed with directions to the concerned respondents to implement such recommendations of the Commission in respect of these honourable Judges of the High Court by issuing notification accordingly.
2. Briefly stated, relevant facts forming background of this litigation are that vide notification F.6(2)/2009-A.II dated 24th September, 2009, issued in exercise of powers conferred to the President by Article 197 of the Constitution, ten nominees/remommendees of the Chief Justice of the High Court, whose name appeared in the said notification, after further due process under- Article 175 of the Constitution, were appointed as Additional Judges of the High Court for a period of one year with effect from the date they take oath of their office. This notification included the names of Messrs Justice Ghulam Sarwar Korai and Justice Irfan Saadat Khan at Serial Nos.3 and 7 respectively. As it appears from the record, out of these ten Additional Judges, the Commission, on completion of their initial term of the office recommended the names of only six Judges for extension of their tenure of the office as Additional Judges of the High Court for a period of one year with effect from 25-9-2010, and accordingly, after due proceedings before the Committee and its approval, in exercise of powers conferred to the President under Article 197 of the Constitution, such notification No,F.6(2)12009.A.II dated 29th December, 2010 was issued. When the period of extended tenure of these Additional Judges of the High Court was nearing to expire, their cases were again placed before the Commission, which, after due deliberations, unanimously recommended the names of all the following six Judges for confirmation:--
(i) Mr. Justice Shahid Anwar.Bajwa (ii). Mr. Justice Ghulam Sarwar Korai
(iii) Mr. Justice Ahmed Ali Shaikh
(iv) Mr. Justice Irfan Saadat Khan
(v) Mr. Justice Aqeel Ahmed Abbasi
(vi) Mr. Justice Munib Akhtar
3. Upon receipt of this recommendation from the Commission, which was sent to the Committee vide letter dated, 27-8-2011, the issue of their confirmation was considered by the Committee, which, after holding its meetings at Islamabad on 8th and 9th September, 2011 endorsed the view of the Commission as regards confirmation of only four Judges (Mr. Justice Shahid Anwar Bajwa, Mr. Justice Ahmed Ali Shaikh, Mr. Justice Aqeel Ahmed Abbasi and Mr. Justice Munib Akhtar), while declining to recommend confirmation/permanent Appointment of the remaining two Judges for the following reasons:- "1. Mr. Justice Ghulam Sarwar Korai The Committee noted that the Chief Justice High Court of Sindh while recording general remarks about the nominee observed that he.Is weak in appreciation of law and slow in disposal of cases and his intelligence and knowledge of laws is barely average. The information furnished by the Revenue Division FBR in respect of the income tax paid by the nominee also shows that he did not pay any tax before his elevation as High Court Judge. The committee was of the view that either the nominee was not actively practicing law or the tax was evaded. A person who is elevated to superior judiciary should not have barely average knowledge of law, as for a judge the dispensation of justice is the foremost obligation and duty. At the same time, a person having practiced, law in superior courts is supposed to have a taxable income and if not, it may be presumed that he must not be having briefs and rather was a non-practicing lawyer , or he has evaded the tax. This reflects adversely on the conduct of a person where concealment of income takes place. The Committe members were, therefore, unanimously of the view that these facts were erucial for deciding the fate of the nominee and therefore,the proposed confirmation of Mr. Justice Ghulam Sarwar Korai was not Justified. The Committee, therefore, did not approve the nomination of Judicial Commission of Pakistan for confirmation of Mr.Justice Ghulam Sarwar Korai as Judge of High Court of Sindh.
2. Mr. Justice Irfan Saadat Khan The Committee noted that the chief Justice High Court of Sindh while recording general remarks about the nominee observed that he knows tax laws, needs more time to grasp other disciplines of law."While evaluating his General reputation in public, bench and bar and Intelligence and Knowledge of laws, he was rated as average. The intelligence 'reports of agencies also show that the financial integrity of the nominee is doubtful and he may indulge in corrupt practices and also occasionally resorts to compromising attitude. The Committee was, therefore, unanimously of the view that these remarks were crucial for deciding the fate of did nominee and therefore, the proposed confirmation of Mr. Justice Wan Saadat Khan was not justified, The Committee, therefore, did not approve the nomination of Judicial Commission of Pakistan for confirmation of Mr. Justice Irfan Saadat Khan as Judge of High Court of Sindh."
4. It was against such decision of the Committee in terms of Article 175-A(12) of the Constitution that the above referred two Constitutional Petitions were filed before the High Court, wherein later on the two justices also joined as interveners.
5. A larger bench of the High Court decided the fate of both these petitions by striking down the decision of the Committee against Mr. Justice Ghulam Sarwar Korai and Mr. justice Irfan Saadat Khan, elucidating in their judgment the concept of "independent judiciary" as a third pillar of the State in line and with reference to the celebrated judgments in the cases of Government of Sindh v.
Sharaf Faridi (PLD -1994 SC 105), Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 SC 869), Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61) and Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445). In order to fortify striking down the decision of the Committee, further reliance was placed on arecent judgment of a five member bench of this Court in the case of Munir Hassan Bhatti v. Federation of Pakistan and another (PLD 2011 SC 407). In the lead judgment authored by learned senior member of the bench objections raised on behalf of the Petitioners/Bar Associations before the High Court in respect of the decision of the Committee relating to two above named judges were discussed in detail and upheld. In addition to it, two other learned members of the bench also appended their separate note in order to further dilate upon some factual and legal aspects of the impugned decision taken by the Committee. Based on their respective reasons, unanimous conclusion recorded by the High Court was that, partly the decision of the Committee was beyond their domain and an encroachment of the Committee were based on presumptions, conjectures and surmises, which could not sustain or form valid basis for depriving the two Additional Judges of the High Court of their legitimate right for confirmation/appointment as permanent Judges of the High Court. Further, it was an unjust stigma over their career for all further times to come, which could not be allowed to hold the field.
6. Mr. Ashique Raza, learned Deputy Attorney General on behalf of the Federation of Pakistan, after brief narration of relevant facts in these two petitions, which are more or less undisputed, strongly contended that plain reading of Article 175-A of the Constitution, upon its insertion in the Constitution vide 18th Constitutional amendment and requisite amendments in it vide 19th Amendment in the Constitution clearly demonstrate the whole scheme of such legislation defining the role two bodies the Commission and the Committee, in their respective Position for appointment and confirmation of the Judges in various High Courts and the Supreme Court of Pakistan in a fair and transparent manner. Making reference to the decision of the Committee in respect of Messrs Justice Ghulam Sarwar Korai and Justice. Irfan Saadat Khan, as reproduced above, his further submission was that it was sole prerogative of the Committee to record its disagreement/dissent to the recommendations of the Commission by assigning its own reasons for such decision, while in the 'instant case reasons so recorded by the Committee were based on proper information and data collected by it through various concerned agencies, thus, it could not be termed as arbitrary, fanciful or conjectural. However, with reference to the decision of the Committee regarding Mr. Justice Ghulam Sarwar Korai, learned Deputy Attorney General candidly conceded that the first part of its observations relating to the performance, legal knowledge, intelligence and conduct as a Judicial Officer was the exclusive domain of the Commission, more so, when it was unanimous decision of the Commission, thus, not open to interference/ dissent by the Committee. With reference to the second part of the reasoning given by the Committee regarding non-payment of income tax by the honourable Judge, before his elevation as High Court Judge and other presumptions drawn by the Committee in respect thereof, his submission was that such view of the matter was based on the information called for and furnished by the Revenue Division/Federal Board of Revenue Islamabad, which is not rebutted till today. Thus such conduct of a person aspiring for appointment or confirmation as permanent Judge of the High Court was his valid and proper disqualification. When confronted with the language of the opinion recorded by the Committee, even with regard to the second objection of the Committee he conceded that recorded facts; he being a non-practicing lawyer, evading tax payment or concealing income are simple presumptions against him as till today under the relevant enactment no action' has been taken against him by the concerned authority, what to speak of any adjudication or conviction by the concerned authority for the charges of tax evasion or concealment of income by him. Learned Deputy Attorney General, further could not reply to our proposition/query that there are many honourable, competent and senior lawyers in the country who have been working "pro bono publico" and there are many others who have been working in this profession seriously, honestly and with full devotion, but not getting proper return in terms of money, particularly in the rural areas of Sindh province.
7. As to the opinion of the Committee about Mr. Justice Irfan Saadat Khan again he candidly conceded that so far his professional capability, performance, intelligence, legal. Knowledge etc. Was concerned, in view of the ratio of judgment in the case of Munir Hussain Bhatti (supra), unanimous view of the Commission was binding on the Committee. Even otherwise it was beyond its domain to re-examine such aspects relating to the professional competence of a Judge before his . Permanent appointment/ confirmation. However, he insisted that the view about the doubtful financial integrity formed by the Committee was based on various reports from intelligence agencies, which were obtained from independent sources, thus, formed valid justification for adverse conclusion recorded by the Committee regarding confirmation of Mr. Justice Irfan Saadat Khan. In his further arguments as regards the concept of independent judiciary, learned Deputy Attorney General fully endorsed the ratio of judgments of this Court in the cases of Sharaf Faridi and Al-Jehad Trust (supra) etc., but contended that the ratio of judgment in the case of Munir Hussain Bhatti (supra) applied and followed by the larger bench of the High Court in its impugned judgment was uncalled for, for the reason that upon introduction of 19th Amendment in the Constitution legal position as regards the role of the Committee had very much changed. In this regard he further made reference to Article 175-A of the Constitution introduced through 18th Constitutional Amendment as amended thereafter by 19th Constitutional Amendment' to highlight such changes in the said Article of the Constitution, which, according to him had made the case of Munir Hussain Bhatti (supra) inapplicable to the facts of the present case, particularly, as regards exercise of powers by the Committee. Summing up his arguments, learned Deputy Attorney General contended that in view of the nature of the controversy involved in these petitions, it is a fit case where leave to appeal may be granted to examine in detail the legality and propriety of the impugned judgment.
8. Conversely, Messrs Makhdoom Ali Khan and Dr. Muhammad Farough Naseem, learned Senior Advocate Supreme Courts for the caveators strongly supported the impugned judgment of the larger bench of the High Court. In this regard Mr. Makhdoom Ali Khan learned Senior Advocate Supreme Court specifically referred the additional note appended by two honourable members of the bench to show as to how in the case of Mr. Justice Ghulam Sarwar. Korai and Mr. Justice Irfan Saadat Khan the report of the. Committee as regards their antecedents based on the information furnished by the Revenue Division, FBR and intelligence reports, were thoroughly examined in Chamber, being confidential record and how certain very important observations were recorded to show superficial nature, of such allegations against these two Additional Judges of the High Court, who had performed as such for a period of two years with clean service record and who were thereafter unanimously recommended by the Commission for confirmation/ permanent appointments. His further submission was that so far as the legal and professional skills, legal acumen, intelligence and capability to perform as a Judge of the High Court was concerned, as also rightly conceded by the learned Deputy Attorney General, it was exclusive domain of the Commission to examine these aspects of matter in each case at the time of the initial appointment as Additional Judge; at the time of extension in the tenure of the office as Additional Judge and also at the final stage when one was being considered for confirmation and appointment as permanent Judge of the High Court. He further argued that it was not for the first time that the case of Mr. Justice Irfan Saadat Khan came up before the Committee for consideration, but such exercise was earlier undertaken by the Committee before the issuance of notification dated 29th December, 2010 for extension of tenure of his office. Thus, according to him, there was no other material available before the Committee to revisit its own earlier view to devise such disqualification, that too on mere presumptions and conjectures based on the reports of certain reporting agencies of the Government. He further argued that Article 17-A of the Constitution was introduced through 18th Amendment in the Constitution while certain amendments introduced in its language and brought into effect vide 19th Amendment have brought no material change in the powers of the Commission or Committee, except reconstitution of these two bodies and further making the decision of the Committee justiciable before some judicial form, as discussed in detail in the case of Munir Hussain Bhatti (supra), Which is clearly attracted and applicable to the facts of the present petitions. Before concluding his submissions, learned Sr. ASC made reference to the judgments in the cases of Walayat Ali Mir v. Pak.
International Airlines (1955 SCMR 650) and Iftikharullah Malhi v. Chief Secretary (1998 SCMR 736) and contened that the ambiguity regarding confirmation, seniority and back benefits of these two Judges needs to be clarified here to give them complete justice and protection against any adverse fall-out of the purported decision of the Committee as regards these issues, as nobody should be made to suffer due to such illegality and no fault of his own. In the case of Walayat Ali Mir (Supra), while examining the claim of the appellant who have challenged judgment of the Federal Service Tribunal before the apex Court, it was held that where an employee in the service of Pakistan International Airlines Corporation was deprived of promotion for which he was entitled under the Regulations and the action taken against him was found to be arbitrary, unfair and devoid of good faith, even after his retirement, it was ordered, that he was entitled to all benefits which would have accured to him in case he had been promoted on his turn on the recommendation of Promotion Board. Further directions were issued to the employer to compute all benefits to which was entitled by virtue of judgment of the apex Court and make its payment to him within a period of three months. In the other case of Iftikharullah Malhi (supra) relating to service dispute of the appellant regarding his promotion, when grievance of the appellant was found genuine, again after his retirement requisite relief of promotion and consequential benefits were his granted to him with directions to the concerned department to finalize his matter within a specified period.
9. De. Muhammad Farough Naseem, learned Se. ASC, adopting the arguments of Me. Makhdoom Ali Khan, learned Se. ASC also made reference to the judgment in the case of Edujii Dinshaw Limited v. Income Tax Officer (1990 PTD 155) to add force to his submission that change of opinion by the Committee, which had already approved and recommended the extension of the tenure of the Office of two Additional Judges of High Court, before the issuance of notification dated 29th September, 2010 in terms of Article 197 of the Constitutional was not permitted by law and that it was estopped from changing its earlier opinion in this regard. In the case of Edulji Dinshaw Ltd.
(Supra), while dealing with an appeal arising out of proceedings under the Income Tax Ordinance, 1979, it was observed by this Court that once all the facts were fully disclosed by the assessee and considered by the Income Tax Authorities, his assessment was consciously completed, and if no new facts were discovered, there was no scope for interference with these concluded proceedings under the provisions of section 65 of the Ordinance of 1979 on the ground that some income chargeable to tax under the Ordinance had escaped assessment or has been under assessed.
Precisely conclusion drawn by the Court was that mere change of opinion will not justify reopening of case and fresh penal action against the assessee.
10. We have carefully considered the above noted submissions advanced before us by the learned Deputy Attorney General for Federation of Pakistan other learned Senior Advocate Supreme Courts and minutely perused the material placed on record with these two petitions. Admitted facts of the case are that Mr. Justice Ghulam Sarwar Korai and Mr. Justice Irfan Saadat Khan were inducted in the superior judiciary as Additional Judges of the High Court for a period of one year vide notification dated 24th September, 2009 from the date they take oath of their office. Issuance of such notifications pre-supposes a detailed exercise undertaken by the Chief Justice of the.
Province and the Chief Justice of Pakistan and other Government functionaries, including the intelligence agencies etc., who must have undertaken such home work before recommendation/clearance of their names for appointment as Additional Judges of the High Court in line with Article 175 of the Constitution and in the manner prescribed thereunder. Again, a glance at the second notification dated 29th December, 2010, containing the names of both these Additional Judges of the High Court, shows that their tenure of office was extended for a period of one year with effect from A 25-9-2010 on the recommendation of the Commission as well as the Committee, as both these bodies, performing their respective functions in terms of Article 175-A of the Constitution as introduced by 18th Constitutional Amendment dated 20-4-2010, found them suitable for this purpose. When term of the office of two Additional Judges of the High Court was nearing expiry, as per practice, the Chief Justice of the High Court with the consultation of Members of the Administration Committee forwarded his opinion recommending their names to the Commission for confirmation/ appointment as permanent judges of the High Court. His opinion was, thereafter, thoroughly discussed by the Members of the Commission in its meeting and after due consideration of each and every relevant aspect of the matter names of these, two Additional Judges were recommended and sent to the Committee for their consideration, along with other four names' of Mr. Justice Shahid Anwar Bajwa, Mr. Justice Ahmed Ali Shaikh, Mr. Justice Aqeel Ahmed Abbasi and Mr. Justice Munib Akhtar. It was at this stage that the Committee in its meetings held on 8th and 9th September, 2011 endorsed the view, of the Commission only in respect of other four Judges, excluding the names of A Mr. Justice Ghulam Sarwar Korai and Mr. Justice Irfan Saadat Khan for the reasons reproduced above.
11. Looking at the reasons assigned by the Committee for rejecting their confirmation as permanent Judge of the High Court, in the case of Mr. Justice Ghulam Sarwar Korai, we find that the Committee had given undue weight to the earlier remarks/opinion of the Chief Justice of the High Court, wherein he had observed that Justice Korai was weak in appreciation of law, slow in disposal of cases and his intelligence and knowledge of laws was barely average. Firstly, such objection/view of B the Committee was not tenable for the reason that after due deliberations before the Commission, Chief Justice of the High Court himself retracted from his earlier stance as is evident from the unanimous decision of the Commission in this regard. Secondly; it was clearly beyond the domain of the Committee to embark upon the professional capability and other related issues of a recommendee of the Commission, which because of its expertise has exclusive domain to evaluate the professional capability, performance, skills, rectitude and competence .Of an Additional Judge of the High Court before recommending his name for appointment as permanent Judge of the High Court. In this context, here a reference to the observations of this Court made in paragraphs 21 to 25 of the judgment in the case of Munir Hussain Bhatti (supra) will be useful, which read as follows: "21. It is clear that the observations which form the sole basis of the Committee's decision represent at best the pre-deliberation views of the Chief Justices of the two High Courts. These views may or may not have an empirical basis. It would be for the Commission, assembled as a collegium to examine the same and to decide whether or not these views adhere to the objective standards considered appropriate or relevant by the collegium. This is the essential function of a collegium responsible for making a collective decision. Our jurisprudence is familiar with instances of collective decision making, be these in University Syndicates, Boards of Trustees/directors or statutory authorities etc. The hallmark of such decision-making is that each member of the collegium brings his own views-informed or uninformed, subjective or reasoned - to the collegiate body. It is there that all views are either synthesised into an objective decision, or a member of the collegiate body, who disagrees with the collective view, records his dissent.
22. In the facts of this case, the relevant collegiate body, the Commission, unanimously agreed to recommend the contentious names after discussion. The Committee, therefore, could not rely on the pre-discussion views of the one member of the Commission respectively in each case, without providing any independent reasoning. The Committee did not have any information before it for treating the tentative views of the two Hon'ble Chief Justices as empirical fact nor did it consider the objective standards which informed the unanimous opinion of the Commission. It is this aspect of the petitions which has been of concern to us and has justifiably been given importance. The Committee could still have disagreed with the Commission within the ambit previously reserved for the Prime Minister, if it had any reasons of its own to justify a different opinion. This process, if adhered to, would have been consistent with the role which was earlier envisaged for the Prime Minister. The outcome of the Constitution Petitions decided by us is a result of these specific circumstances. It follows, therefore, that if the facts are different in any subsequent case the outcome of such case may also be different. This is precisely what 'we have said in para. 74 of the concurring opinion, which in relevant part is reproduced as under:-- "74. ... We are not here engaged in an academic exercise or in a discourse to expound general constitutional principles of political philosophy. Our job here is to determine the fate' of the petitions before us. And the outcome of these petitions is determined, ultimately, by their own facts and circumstances." (Emphasis is ours).
The same view has been repeatedly emphasised in the judgment under review where we have underscored this by noting that "we have consciously confined our consideration of the petitions and arguments advanced, to the specific facts and circumstances of [these] cases".
23. Therefore, if in future the Committee decides to subordinate itself to the opinion of one member of the Commission, it must, under accepted norms of judicial scrutiny, give its own reasons for making this choice. Without such reasons which are capable of withstanding judicial scrutiny, the opinion of the Committee can only be termed as unreasoned and arbitrary.. Jurisprudence jurisprudence as a rule strikes down arbitrary and unreason: I exercise of discretionary power, particularly when the requires that reasons be given by the decision maker for such exercise of power. Reference can be made to the case titled Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61) if authority is required for this established principle of law. Thus, if at all, a legal principle is to be deduced from our judgment in the light of 'Article 189, it would be that the Committee does not have, untrammeled powers to choose, without sound reasons, the unconsidered views of one member of the Commission out of thirteen, while discarding the considered views of all thirteen members together or of the remaining twelve members. The decisions of the Committee must meet the usual and well recognized standards of objectivity and application of mind, amongst other standards.
24. It must also be noted here that even Mr. Agha rightly acknowledged that allowing the Committee to pick and choose between the views of members of the Commission would amount to unwarranted slippage into the territory, which Article 175A has endeavoured to avoid. He nevertheless advanced the argument that some extra weight should be given to the opinion of the Chief Justices of the two High Courts because they would be in a better position to make an evaluation of the capabilities and potential of a nominee. This is not necessarily a correct premise because it would be equally arguable that the five, senior most Judges of this Court would have a better ability to assess such potential, having had the occasion to sit in appeal over decisions of the nominees. Giving weightage to the views of one member of the Commission, apart from being questionable on the said ground, will also have the effect of negating the principle of collegiate decision-making introduced in the Constitution by Article 175A. As Mr. Makhdoom Ali Khan said with some justification, this would emasculate the Commission, reducing its power to selection of nominees only, but otherwise, in matters of actual appointment, it would be rendered subordinate to the Committee.
25. Mr. K. K. Agha then prayad that we should identify areas left open for the Committee for cases which may arise in the future. Consistent with our views expressed in paragraph 74 ibid, we will not speculate or play clairvoyant or gaze into crystal balls. We, therefore, will not make an attempt to provide for, all possibilities or future eventualities. As was aptly put by Benjamin Cardozo, an American jurist and judge in the last century in his lecture on "Adherence to Precedent", "we have to pay in countless ways for the absence of prophetic vision. No doubt the ideal system, if it were attainable, would ... Supply for every conceivable situation, the just and fitting rule. But life is too complex to bring the attainment of this ideal within the compass of human powers". (Cardozo, B. J.
Adherence to Precedent (1921) New Haven: Yale University Press). We have already stated that the Committee has the powers indicated above. It only has to adhere to established standards in arriving at its decisions to ensure that such decisions withstand judicial scrutiny. The learned Additional Attorney General then advanced the argument that the decisions of the Commission must also state reasons and be subject to judicial review. This question does not arise in these petitions. We need not, therefore, speculate on an issue not before us."
12. Moreover, we may observe here that in the case of Munir Hussain Bhatti (supra), a four member bench of the apex Court has further examined in detail the true spirit of "independence of judiciary" under our Constitutional dispensation; the formation of Commission, its role and jurisdiction in the process of selection of judges in the superior judiciary in terms of Article 175-A, as inserted through 18th Amendment dated 20-4-2010, and also after its amendment by 19th Constitutional Amendment (Act I of 2011) dated 4-1-2011; similarly, the formation of Committee, its role and jurisdiction in the process of selection of judges in the superior judiciary in terms of Article .175-A of the Constitution; justiciability of the decision of the Parliamentary Committee; and further made comparison of Article 175-A before and after its amendment by 19th Constitutional Amendment, thus it is clear that all the legal aspects of the case involved in the present case were thoroughly examined and highlighted in this well discussed and well reasoned. Judgment of the Court, which is applicable with all force to the facts of these petitions. Besides, in a recent judgment in the case of Province of Sindh v. Rasheed A. Rizvi (PLD 2012 SC 649), this Court has once again taken into consideration the issue of independence of judiciary under the Constitutional scheme of trichotomy of power in our Country and while affirming the full Ben& judgment of the High Court (PLD, 2010 Karachi 63), held that even in the matter of appointment of judges in the subordinate judiciary, underlying principle of independence of judiciary cannot be compromised and the executive has, in this regard, no pivotal-role to play, particularly as regards merit, professional capability, competency and suitability of a candidate to hold a judicial office, which is the exclusive domain of the judiciary.
13. Reverting to the other part of objections of the Committee based on the information furnished by Revenue Division/Federal Board of Revenue regarding non-payment of income tax by Mr. Justice Ghulam Sarwar Korai before his elevation as Additional Judge of the High Court, we may observe that this objection might have been forceful, in case it had been raised by the concerned quarters at the time of his initial appointment as Additional Judge of the High Court, vide Notification dated 24th September, 2009. But, in the instant case, there is no denial of fact that no such objection was ever raised either at the first instance or even at the time of extension in the tenure of his office as Additional Judge of the High Court. In other words the Committee in its earlier exercise undertaken before issuance of Notification dated 29th December, 2010 had not found any such fault in him as a disqualification to perform as Additional Judge of the High Court. Moreover, even from the language of objections to this effect recorded by the Committee the conclusion drawn against Mr. Justice Ghulam Sarwar Korai is squarely based on mere presumptions.
Admittedly non-payment of income tax by any person whose income is taxable, and even non filing of tax return by him is an offence under the Income Tax laws (see: sections 55 and 56 of the Income Tax Ordinance, 1979 and pari materia sections 114(4) of the Income Tax Ordinance, 2001) for which concerned authority under the statute is competent and required to take action against him qua evasion of tax payment. But without any action to this effect by the concerned authority any adverse presumption against a person regarding concealment of income or evasion of tax payment is totally uncalled for and baseless. Thus, mere fact that report has been furnished by Revenue Division/Federal Board of Revenue against a person regarding nonpayment of income tax will not justify an adverse inference or presumption against him that his income was taxable which he has concealed and avoided payment of income tax. We cannot resist, but to observe that indeed concealment of income and evasion of tax payment is a serious crime which should be dealt with strictly in accordance with law and considered as disqualification for a person aspiring to hold such-a high office, but any action in this regard against some individual based on mere presumption, that too in denial of the principle of "audi alteram partem" is totally unacceptable and unjustified. More so, as legal profession is a noble profession, calling for high ethical and moral values. There are number of instances where many counsel have been continuing with this noble profession pro bono publico; there are also number of other instances where many upcoming, competent, busy and hard working professionals in the legal field do, not get sufficient return for the services rendered by them, particularly, in rural areas. Thus, looking at this issue from any angle the decision of the Committee based on such conjectural conclusion is not tenable in law.
14. Reverting to the case of Mr. Justice Irfan Saadat Khan and impugned opinion/decision of the Committee in this regard, at the cost of repetition, we have to say that as to its first objection about his professional capability, intelligence and knowledge of law, the G Committee exceeded its jurisdiction as it was the exclusive domain of the Commission to examine these aspects of the matter before recommending his name either for initial appointment as Additional Judge for a fixed period; extension in the period of his tenure of office as Additional Judge or his confirmation/appointment as permanent Judge of the High Court. In the instant case, as evident from the record, this exercise was undertaken by the Commission twice after introduction of Article 175-A through 18th Amendment and 19th Amendment as well as under. Article 175 of the Constitution at the time of initial appointment vide Notification dated 24th September, 2009 and on all the three occasions he was found fit for such appointment. Indeed the Chief Justice of the High Court, while recording his remarks has observed that "he knows tax laws, needs more time to grasp other disciplines of law" and rated him as average. But, as apparent from the unanimous recommendation of the Commission, after deliberations, he did not consider these objections fit to support and thus conceded to a unanimous decision taken by the Commission for confirmation/permanent appointment of Mr. Justice Irfan Saadat Khan as Judge of the High Court.
Following the ratio of judgment in the case of Munir Hussain Bhatti (supra), which is squarely applicable to the facts of the present case, first part of the objection was entirely beyond the jurisdiction of the Committee, thus, not tenable in law. Coming to the other part of objection of the Committee based on the intelligence report of the agencies showing their doubts about the financial integrity of Mr. Justice Irfan Saadat Khan, coupled with their apprehension that he may indulge in future corrupt practices or occasionally resort to compromising attitude, again we may observe that it was not for the first time that case of Mr. Justice Irfan Saadat Khan was placed before the Committee on 8th and 9th of September, 2011, but earlier to it also before issuance of Notification dated 29th December, 2010, containing his name amongst the names of. Other Additional Judges, who had been given extension in their tenure of office as Additional Judges of the, Court for a period of one year with effect from 25-9-2010, such an exe Highrcise was undertaken by the Committee and thereafter a conscious decision was taken in favour of Mr. Justice Irfan Saadat Khan. In so far as the reports of the agencies are concerned, the same are not available before us, but the same were perused by the larger bench of the High Court before passing the impugned judgment. Thus, it will be useful to reproduce hereunder some passages from the added note appended with the impugned judgment, recorded by the two members of the bench, who had the opportunity of taking into consideration such .Reports and discarding them by recording their remarks as under:-- "5. We have thoroughly examined both the reports. In the first report, at serial number 9, while commenting on "Corruption" the remarks that are stated are "not reported". In this very report at Serial No,16, it is stated he is professionally an average Judge who is devoted to his profession and that he is not an opportunist/manipulator. In the said column it is though stated that occasionally he resorts to compromising attitude but at the same time it is also stated that he enjoys satisfactory.
Reputation. The remarks that "he occasionally resorts to compromising attitude" were not supported by any material. No material was shown to us, though the Deputy Attorney General was specifically called upon to place all material before us on the basis of which such an opinion has been formed. As regards the second report, it states that the financial integrity of Irfan Saadat J is doubtful and he may indulge in corrupt practices. Nothing was placed before the Court in support of such allegation. The report does not state that he has indulged in corrupt practices but a presumption has been drawn that he may indulge in corrupt practices. This is a very superficial way of reporting about the character of a person who has been 'Additional Judge of the High Court for a period of two years. Irfan Saadat Khan J was not made Additional Judge for the first time. He was given extension for another term upon expiry of the first term and nothing adverse was reported against him then. If there was any substantial material in his second terms related to some instance of corruption that should have been specifically pointed out in the intelligence report.
6. In our view the reporting functionaries have not exercised extreme caution while attaching stigma to the character of Ghulam Sarwar Korai J and Irfan Saadat Khan J generalized observations on the character of a person holding office of Superior judiciary even if untrue may leave a lasting effect in the minds of the legal fraternity in particular and the public at large which damages his reputation as long as he lives. A nominee may not be that disappointed for not being appointed as a judge than being devastated for having lost his image and reputation in the public eye. The adverse remarks made by the Parliamentary Committee against the two appointees may continue to haunt them throughout their lives though there was absolutely no material disclosed to the Court to substantiate such remarks. We are, therefore, of the opinion that decision of the Parliamentary Committee not to confirm Ghulam Sarwar Korai J and Irfan Saadat Khan J as judges of this Court was not based on any substantive material and thus not justified leaving us with no other option but to set aside the same as of no legal effect."
15. The above statement of facts recorded by the learned larger bench in the impugned judgment with reference to the F.B.R report of Mr. Justice' Ghulam Sarwar Korai and intelligence report against Mr. Justice Irfan Saadat Khan, which formed basis for the decision of the Committee against them, and has not been denied by the learned Deputy Attorney General before us are more than sufficient to show that no reliance could be placed on such reports based on simple conjectures, thereby attempting to ruin the whole career and putting stigma on their future on that account.
16. After going through the impugned judgment and its added note delivered by the larger bench of the High Court, we are satisfied that for cogent and valid reasons both the petitions have been rightly allowed through the impugned judgment, and thus, such judgment calls for no interference.
17. The concept of independent judiciary as third pillar of the State has been discussed by the superior Courts in Pakistan time and again in various judgments, some of which are with specific reference to the appointment of judicial officers in the subordinate judiciary as well as in the superior judiciary. However, as this legal aspect has been addressed in the impugned judgment and has not been seriously contested before us by the learned DAG, therefore, instead of once again dilating upon it, M, this context, mere reference to the following judgments will serve the purpose.
(a) Sharaf Faridi v. The Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404).
(b) Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105).
(c) Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324)
(d) Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445).
(e) Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504).
(f) Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000rSC 869).
(g) Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879).
(h) Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary (PLD 2010 SCMR).
(i) Rasheed A. Rizvi v. Province of Sindh (PLD 2010 Karachi 63).
(j) Nadeem Ahmed v. Federation of Pakistan (PLD 2010 SC 1165)
(k) Province of Sindh v. Rasheed A. Rizvi (PLD 2012 SC 649).
18. Before recording our conclusion, at the cost of repetition, we reiterate that ratio of Munir Hussain Bhatti's case is fully applicable and rightly relied upon by the three members Bench of the High Court in its impugned judgment in order to give requisite relief to the two Additional. Judges of the High Court, who were denied their legitimate right by the Committee for the reasons, which were neither factually correct nor tenable in law. Refering to the arguments of Mr. Makhdoom Ali Khan, Senior Advocate Supreme Court, we may further add here that it is well recognized and settled principle of legal jurisprudence that if an illegal action/wrong is struck down by the Court, as a consequence, it is also to be ensured that no undue harm is caused to any individual due to such illegality/wrong or as a result of delay in the redress of his grievance. It is for this reason that in number of judgments of the apex Court, out of which two have been referred to above, in service matters, concept of reinstatement into service with original seniority and back benefits has been developed and followed on case to case basis to give complete relief to an aggrieved party.
Following the same equitable principle, while passing our short order, we have specifically mentioned that the issuance of notification for permanent appointment of the two Judges shall have its effect from 17-9-2011 when four other recommendee of the Commission in the same batch were notified after clearance by the Committee, so that they shall have their respective seniority and all other benefits as permanent judges of the High Court.