' MAQBOOL BAQAR, J.---Through the above two petitions, filed by Sindh High Court Bar Association, Sukkur and by the Sindh High Court Bar Association, Karachi, ("petitioners") respectively, the petitioners have assailed a decision of the Parliamentary Committee, constituted under Article 175A of the Constitution ("Committee"), whereby it refused to confirm the nomination made by the Judicial Commission ("Commission"), which also is constituted under the aforesaid Article of the Constitution.
2. The facts of the case, in brief, are that in its meeting held on 27th August, 2011, the Judicial Commission, as evident from letter of the said date, sent by the Secretary of the Commission to the Secretary of the Committee, the members of the Commission after thorough deliberations on the professional caliber, competence, legal acumen, antecedents, Commitment/ and devotion to duty and efforts made for expeditious disposal of cases by the Six (6) Hon'ble Additional Judges of this Court, including Mr. Justice Ghulam Sarwar Korai and Mr. Justice Irfan Saadat Khan, whose names were placed before the Commission by the Hon'ble Chief Justice of this Court for considering their confirmation as permanent Judges of this Court, and keeping in view the evaluation report, submitted by Hon'ble Mr. Justice Nasir-ul-Mulk, who is one of the members of the Commission and was entrusted the task of scrutinizing the judgments of the said nominees unanimously recommended all the six additional judges for, confirmation, and forwarded the said recommendations, through the aforesaid letter, to the Committee. The Parliamentary Committee in its meeting held on 8th and 9th September, 2011, though accepted the above recommendations in respect of the four of the above nominees, but refused to accept such recommendation in respect of the above named two Hon'ble Additional Judges.
3. Mr. Makhdoom Ali Khan, the learned counsel for the afore named two learned Additional Judges of this Court, who intervened in the proceedings; submitted that the impugned decision of the Committee is without jurisdiction, inasmuch as it has, in making the decision, gone beyond its well prescribed area of competence. The learned counsel further submitted that it is now well settled that the question of professional calibre, competence, legal acumen and overall suitability of a potential nominee falls within the exclusive domain of the Commission. The learned counsel, in this regard, referred to the cases of MUNIR HUSSAIN BHATTI AND OTHERS v. FEDERATION OF PAKISTAN AND ANOTHER (PLD 2011 SC 407) and AL-JEHAD TRUST v. FEDERATION OF PAKISTAN (PLD 1996 SC 324).
4. Mr. Khan argued that it was after thorough deliberation regarding the competence, legal acumen, judicial skills of the nominees, and keeping in view their performance during their two years period as Additional Judges of this Court, that the Commission unanimously nominated them for confirmation as permanent Judges, however, ignoring the above, the Committee, purportedly based its decision, on certain remarks of the honourable Chief Justice, as contained in the proformas attached by him along with his note, for initiating the consultative process for the appointment of the nominees, although after the above noted exercise conducted by the Commission, the honourable Chief Justice of this Court also agreed to their confirmation and thus the unanimous decision. He argued that the very purpose of Article 175A in creating the two collegiate bodies namely, the Commission and the Committee is to diversify and defuse the decision making process regarding appointment of Judges to the Constitutional Courts, is to benefit from the collective wisdom and expertise of the members of the two bodies. He submitted that the relevant provisions of the said Article require the decision of judicial appointments to be made by majority and thus certain preliminary remarks and opinions expressed by any one member of the Commission, cannot be used as a pretext for refusing to accept the unanimous decision of the Commission. In support of this contention, Mr. Makhdoom Ali Khan relied upon the case of MUNIR HUSSAIN BHATTI (supra). He argued that the impugned decision is based on erroneous understanding of the Constitution and law, as through such decision, the Committee has purportedly eroded the cardinal principle of independence of the Judiciary and separation of powers, which is now well entrenched in our jurisprudence. He further argued that prior to the 18th and 19th amendments also it was well settled that the competence, legal acumen, judicial performance, skills and overall suitability of a nominee has to be evaluated only by the judicial consultees and the recommendation/ nomination for appointment to the Constitutional post made by such consultees is binding upon the executive functionaries, unless, for very strong reasons, pertaining only to the antecedents of the nominee, the Committee is able to show that the nominee is not suitable for the post, and that such reasons are justiceable and are amenable to judicial review.
5. As regards the Committee's purported reliance on the intelligence reports of the agencies regarding the antecedents of Mr.Justice Irfan Saadat Khan, Mr. Makhdoom Ali Khan submitted that the two intelligence reports, purportedly relied upon and submitted on behalf of the Parliamentary Committee before this Court, one from the Inter Services Intelligence (ISI), and the other from the Intelligence Bureau (I.B.), do not provide any ground or justification to the Committee, for their refusal to confirm the subject nominations sent by the Commission. He submitted that the report from ISI clearly shows that there is no report of any corruption by the said learned Judge and that he enjoys satisfactory reputation, whereas the opinion casting aspersion against the said learned Judge in the purported report of the I.B. Is wholly unsubstantiated, neither the said report furnishes any reason, nor any justification and/or explanation for such opiniated version, the report also does not even explain as to how and in what manner, and through whom the bureau garnered such impression. The learned counsel contended that the I.B. Report clearly reflects, non serious and unprofessional, and irresponsible attitude of it's, undisclosed author, and that absolutely no credibility can be attached to the report and that same is worthless and is of no avail.
6. He argued that the Committee's stance, that since as per the information obtained from the Federal Board of Revenue. Mr. Justice Ghulam Sarwar Korai has not paid any income tax prior to his elevation to the Bench, and as such the learned Judge either did not have substantial practice or he has evaded payment of income tax, is wholly irrelevant, as the question, as to whether the learned Judge enjoyed substantial practice or not, was to be examined/considered by the Commission and does not fall within the domain of the Committee.
7. Concluding his arguments, the learned counsel submitted that since the impugned decision is not in conformity with the Constitution and law, and has also been rendered without any lawful authority, is of no legal effect and may be declared as such with direction to the Federation to issue notification for the confirmation of the aforesaid two learned Additional Judges.
8. Dr. Muhammad Farough Naseem, learned counsel for the Petitioner in C.P. No,3125/2011 and Mr. Anwar Mansoor Khan, learned counsel for the Petitioner in C P No,3286/2011 adopted the arguments of Mr. Makhdoom Ali Khan.
9. Mr. Ashikue Raza, the learned DAG supporting the impugned decision submitted that the public airing of, and debate on, the reasons given by the Committee for rejecting the nominations would undermine the sanctity of the Judicial office. He contended that in case impugned decision is set aside and the Judges are called upon to perform their functions, as such, they would be confronted with an unsavony working environment, always haunted by clouds of allegations, which found favour with the Committee, the propriety thus demands that the Court should exercise restraint and decline to set aside the impugned decision which in the facts and circumstances of the case is wholly justified and lawful.
10. In our jurisprudence, it is now well settled : (i)That the independence of the judiciary and the concept of separation of powers are the cardinal principles of our Constitutional scheme; (ii)That the independence of judiciary is inextricably linked and connected with the process of appointments of the Judges of the Constitutional Courts;
(iii) That the evaluation of the calibre, competence, legal acumen, and the overall suitability of a nominee for appointment as a Judge of a Constitutional Court falls exclusively within the domain of the judicial consultees; (iv)that the decision of the Commission is not justiciable;
(v) that the scope of the Committee's function and competence is limited to consider the antecedents, to be examined on the basis C of material obtained by the Committee/executive;
(vi) that the Committee can refuse to accept the nomination of the Commission only on the basis of antecedents, such as character, moral and/or financial integrity;
(vii) The Committee's refusal to accept the nomination by the Commission should be based on very strong reasons pertaining to the criteria falling within the former's domain
(viii) that the reasons, as above, are justifiable and are amenable to judicial scrutiny/review.
11. The concept /principle of independence of the judiciary in the context of 1973's Constitution has been dealt with in the case of SHARAF FARIDI v. FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN (PLD 1989 Karachi 404) in the following words: "Contemplated the trichotomy of power between the three organs of the State, namely the legislature, the executive, and the judiciary it was envisaged that the judiciary would be independent and separate from the other organs of the State..."
12. 'Elaborating on the above principle in AL-JEHAD TRUST'S case (supra), the honourable Supreme Court observed that "the judiciary shall be independent". In Zafar Ali Shah's case (PLD 2000 SC 869) the honourable Supreme Court recognised the above principle in the following words: "Independence of the judiciary is a basic principle of the Constitutional governance in Pakistan".
13. The honourable Supreme Court reiterated the above principle in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhary v. President of Pakistan (PLD 2010 SC 61) as follows: "...That the independence of the judiciary was a basic and a salient feature of the Constitution."
14. The fact that the independence of the judiciary as enshrined by the Constitution, is mainly secured through the process of appointment, removal and security of Judges, has long been recognised by our Courts. The said principle has been reiterated in AL-JEHAD TRUST's case as follows: "...The independence of judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior judiciary".
15. In this regard one may also refer to the MEHRAM ALI's case (PLD 1998 SC 1445) where the honourable Supreme Court held that the -terms, conditions and security of tenure of Judges is also central to the independence of the judiciary." Reaffirmation of the above principle is also found in the Chief Justice's case in the following words: "Security of office of judges and of its tenure was a sine qua non for the independence of judiciary."
16. The above extracts of the various judgments have been taken by us from the opinion of his Lordship Mr. Justice Jawwad S. Khawaja rendered in the case of MUNIR HUSSAIN BHATTI AND OTHERS (supra). His Lordship discussing the above cited cases, observed that "Indeed it is of an undisputed tenet of our Constitutional scheme that in matters of appointment, security of tenure and removal of Judges the independence of the Judiciary should remain fully secured." Dealing with the question of justice ability of the reasons of the Committee to differ with the recommendations of the judicial consultees in the afore noted judgment, Justice Khawaja observed ". That prior to the 18th amendment, it was well settled as a principle that the executive organ of the State was obliged to give reasons for its decisions if it chose to differ with the opinion of the Chief Justice of Pakistan. It was also well settled that the reasons given by the executive organ of the State were justiceable. The touchstone and scope of justifiability and the limits of the executive authority to differ from the opinion expressed by the Chief Justice of Pakistan also came to be well defined in the context of Article 193 of the Constitution which related to the appointment of Judges of the High Courts. It is, thus, beyond doubt that the constitutional principles relating to the independence of the judiciary were already well-settled at the time the 18th and the 19th amendments were tabled in Parliament; and these principles remain fundamentally unaltered even after the above- mentioned amendments, notwithstanding the " changes in the procedure for making judicial appointments."
17. His Lordship further observed that ".... The essence of the amendments (18th and 19th amendments) is to bring about changes in the process of making judicial appointments; rather than in the structure and underlying values of the Constitution such as the independence of the judiciary and one of its supporting pillars namely, judicial appointments."
18. Now coming to the respective functions and roles of the Commission and the Committee, it may be noted that the Commission consist of, among others, the Chief Justice of Pakistan, the four senior most Judges of the Supreme Court, a retired Judge of the Supreme Court, the Chief Justice and the senior most Judge of the concerned High Court, the Federal Minister for Law and Parliamentary Affairs, the Attorney General of Pakistan, the Provincial Law Ministers and the representative of the Legal fraternity. Whereas the Committee consist of eight Parliamentarian, four each from Treasury and opposition benches. Both these Constitutional bodies have been created under Article 175A of the Constitution, which assigned specific functions to them. The division of functions between the judicial consultees and the executive functionaries of the State stood judicially well delineated even before the eighteenth amendment. In Al-Jehad case, it was held that "the judicial consultees are best suited to determine the calibre, competence, legal acumen and over-all suitability of a person for appointment to a tenured judicial office under the Constitution. The executive functionaries on the other hand were considered more suitable, for ascertaining the antecedents of judicial appointees. A reasonably clear demarcation between the different roles, respectively, of the judicial consultees and the executive functionaries of the State was thus drawn. And with the passage of time this demarcation was further refined. In the latest pre-amendment judicial pronouncement on the question of appointment of Judges, made in the case of Sindh High Court Bar Association and another v. Federation of Pakistan and others (PLD 2009 SC 879), for instance, it was held that the opinion of the. Chief Justice of Pakistan in respect of the suitability of a person to be appointed to constitutional judicial office had primacy and that this opinion was subjective and not open to challenge through judicial review.
19. In the above context, the role envisaged for the Commission under the present dispensation has been examined and discussed by Justice Jawwad S. Khawaja in Munir Bhatti's case, as under: "Each member of the Commission is directly and substantially connected with the Courts in one way or another. The members of the 'Commission thus have the occasion of assessing first hand, the legal abilities and performance of persons who potentially could be appointed as Judges. In the ex Officio appointments of the Minister of Law and Parliamentary Affairs, and of the Attorney General for Pakistan, the-Judicial Commission now also has the additional ability to make an assessm ent as to the antecedents of a nominee through access to the information and executive resources of the State which otherwise, may not be available the other members of the Judicial Commission. What is also worth noting is that barring the one former Judge of this Court and the advocates who are members of the Commission, all others are ex Officio Constitutional functionaries making the Commission a continuous body with changing membership, the preponderant majority whereof, being ex Officio, is not dependent on any separate process for their own appointment."
20. His Lordship further observed that "this composition of the Commission immediately highlights two things. Firstly, that the expertise and core competence of the members of the Commission will facilitate the identification and nomination of appointees to judicial office based on calibre, competence, legal acumen, antecedents and over-all suitability of a person for appointment as a Judge. Secondly, the composition of the Commission will ensure diverse inputs on account of the diversity and the continuous changing nature of its membership, thus tending to make the Commission's nominations more objective and not dependent on the personal opinion of one or, at best, two individuals. It does not take a great deal of imagination or a leap of logic to conclude that the role (as defined by precedent) which was assigned previously to the judicial consultees is now to be performed by the Commission as a collegiate body."
21. Referring to the role of the other functionaries involved in the appointment process, his Lordship observed that "It will be seen that in the original Articles 177 and 193, a Judge of the Supreme Court and Judges of a High Courts were to be appointed by the President after consultation with the Chief Justice of Pakistan and other consultees mentioned in Article 177 and Article 193(1) respectively. These provisions, in relevant part, have been replaced by Articles 177(1) and 193(1), as amended, which stipulate, inter alia, that Judges of the Supreme Court and the High Courts shall now be appointed by the President in accordance with Article 175A. When clause (1) of Article 175A is considered, a bare reading of the same shows that the Commission has been created for the appointment of Judges of the Constitutional Courts. Thus, while the President previously made the appointments on the advice of the Prime Minister, both have now been left with nominal ministerial roles and their powers, in the words of Mr.Raza Rabbani, "have been taken away". The Prime Minister is now obliged to simply forward the confirmation made or deemed to have been made by the Committee to the President and the President equally is obliged to make the appointment on the basis of such confirmation. The Prime Minister and President, under the new constitutional dispensation, thus have no power or authority to differ with the decision of the Parliamentary Committee. The role which they were performing in the previous legal setup, as examined above, is now, logically, to be performed by the Committee. It is, therefore, evident that the purpose the raison detre of the Commission and the Committee is the appointment of Judges albeit in accordance with the procedure laid down in Article 175A. Given this dispensation and the above referred historical context, the Committee cannot (without eroding judicial, independence) be seen as a superior body sitting in appeal over the recommendations of the Commission with the ability to set aside or reverse the well-considered opinion of the members of the Commission. The fact that Parliament was fully aware of the state of the law, as judicially interpreted, and yet did not define or demarcate the respective roles inter se of the Commission and the Committee, provides very strong manifestation of the intention of Parliament "that the fundamental principles of the Constitution are not altered". The distinction between the legal acumen and suitability of an appointee, and his antecedents is so well recognized in our constitutional jurisprudence that it is not possible to assume that it was not in the mind of Parliament when it decided to amend the Constitution. From the absence of role-definition in Article 175A, in respect of the Commission and Committee, it can safely be inferred that Parliament intended to preserve the delineation of powers in the previous dispensation, but vest the roles in more diffused bodies than was previously the case."
22. In the instant case, it may be recalled that the members of the Commission after evaluating the calibre, competence, legal acumen antecedents, and overall suitability of the nominees and upon examining the judgments/orders rendered by them during two years period when they functioned as Additional Judges of this Court, and also keeping in view their overall performance as Judges during such period, unanimously nominated them for confirmation. However, the Committee decided not to confirm the nomination of the aforesaid two learned Additional Judges. For such refusal, the Committee relied upon certain observations made by the honourable Chief Justice of this Court in the pro forma prepared by him, regarding the "intelligence" and "knowledge of laws" in relation to the said learned Additional Judges. In respect of Mr. Justice Ghulam Sarwar Korai, Committee also referred the such remarks pertaining to "disposition for quick disposal", another purported reason mentioned in relation to Justice Ghulam Sarwar Korai was that since the information furnished by the Federal Board of Revenue shows that he did not pay any income tax before his elevation, the Committee was of the view that either the learned Judge was not actively practising law or the tax was evaded. In addition to the matter relating to the performance and competence of the two learned Additional Judges. The Committee by way of justification for refusal, in the case of Mr. Justice Irfan Saadat Khan, also purportedly relied upon the reports of the intelligence agencies regarding his antecedents.
23. The afore-noted pro form has been designed by the Commission as a mechanism for initiating the process of nomination, enabling the members of the Commission to have a meaningful and purposive discussion. The purpose of which discussion as envisaged by the 18th and 19th Constitutional Amendments was to do away with the subjective opinions of one or two persons, and it was keeping in view the above objective that a thirteen-members collegiums, which could, through exchange of varying opinions, make a collective decision by majority of its membership.
The collegium has, after deliberations, unanimously recommended the nominees, including the concerned Judges. It was only after deliberation by the Judicial Commission as a Constitutional body that the Hon'ble Chief Justice- of this Court also agreed that the two Hon'ble Additional Judges of this Court be recommended for confirmation.
24. It may be relevant to recall here that thirteen members of the Commission are law-knowing and law related persons capable of making objective evaluation of the suitability of a nominee for judicial office. However, on the other hand, the Committee lacks such level of expertise and also do not possess the first hand information about a nominee and therefore the Committee cannot lawfully rely upon the opinion of just one member of the Commission expressed by him prior to collective deliberation, for refusing to accept the ultimate collective decision of the Commission. It may also be noted here that the purpose of defusing the decision making process and spreading it over a collegium comprising of thirteen persons, was to ensure that an objective and balanced opinion emerges from the deliberations of the Commission. The pre-deliberation evaluation of the Chief Justice of this Court do not now need to be considered because, as a matter of law, said evaluation disappear when they merge into the final and unanimous recommendation of the Commission. In this context we need to keep in mind that Article 175A expressly mandates a collective decision of the Judicial Commission and leaves no room for individual opinions of any one member of the Judicial I Commission. More particularly, so when such opinion is a purely individual opinion, without benefit of the views of other members of the Commission. As discussed earlier, although by virtue of Article 175A the power in respect of the appointment of Judges to the Constitutional Courts has been devolved from persons to collegial institutions, however, the essential demarcation of functions and duties between the judicial consultees and executive functionaries, as delineated by precedent; has remained largely intact and therefore it is also relevant to note that the remarks as contained in the relevant pro formas such as pertaining to "intelligence", "disposition for quick disposal" falls exclusively within the jurisdiction and competence of the Commission and as noted earlier the Commission while evaluating the concerned Judges of this Court on the above criteria also unanimously found them suitable for confirmation and therefore for the Commission to delve into such matter, amounts to their travelling beyond their prescribed domain.
25. As regards the Commission's stance pertaining to payment and/ or non-payment of income tax by one of the concerned Judges it may be observed that the question as to whether the learned Judge had adequate practice so as to generate taxable income or not was/ is clearly within the domain of the Commission and as such the argument regarding and flowing from the question of payment and/ or non-payment of taxes is/was not available to the Committee.
26. Coming to the question of the Committee's purported reliance on the intelligence reports from Inter Services Intelligence and Intelligence Bureau, as rightly submitted by Mr. Makhdoom Ali Khan the same also do not justify the Committee's refusal to accept the unanimous recommendations of the Commission, as the report from ISI clearly shows that there was no complaint/ report of corruption in relation to the said learned Judge and that he enjoys satisfactory reputation.
Whereas, the opinion, casting aspersion in relation to the conduct of the said learned Judge, contained in the purported report of the I.B. Is wholly unsubstantiated, bereft of any reason, neither the said report furnishes any reason, nor any justification and /or explanation for such opiniated expression, it does not even explain as to how and in what manner, and through what means the Bureau has gathered such impression. The said report clearly reflects non serious, unprofessional, and irresponsible attitude of it's, undisclosed author and thus the report lacks credibility and cannot be allowed to form any basis for discrediting the learned Judge.
27. From the above discussions, it can now be clearly seen that the impugned decision of the Committee not only suffers from illegality, irrationality and procedural impropriatory, but in large part has purportedly been made for considerations which are clearly beyond the well prescribed domain of the Committee. We would, in the circumstances, allow the instant petitions as follows:- -
(A) By declaring that the decision of the Committee, whereby the names of the aforesaid two Additional Judges were not confirmed as permanent Judges of this Court are not in accordance with the provisions of the Constitution.
(B) Consequently, we set aside the impugned decision in respect of the two learned Judges, namely, Mr. Justice Ghulam Sarwar Korai and Mr. Justice Irfan Saadat Khan and direct the respondents to implement the recommendations of. The Commission in respect of the two above named Judges of this Court and to issue notification accordingly.
(Sd.)
Maqbool Baqar, J ' We agree with the conclusion however we have appended our separate note.
(Sd.) (Sd.)
Faisal Arab, J Sajjad Ali Shah, J ' HIGH COURT OF SINDH, AT KARACHI C.P. NO.D-3125 OF 2011 and C.P. NO.D-3286 OF 2011 ' NOTE
1. We had the benefit of going through the judgment proposed to be delivered by our learned brother Maqbool Baqar J. We are in agreement with the conclusion drawn by him. However we intend to append our own reasoning in order to clarify that initial nomination for appointment as Additional Judge or a Judge in the High Court is to be made exclusively by the Chief Justice of the concerned High Court and after receiving the initial nomination, the Chairman, convenes meeting of the Judicial Commission of Pakistan where the nomination is considered. Judicial Commission then either recommends or rejects such nomination but on its own does not initiate the process of nomination. The reasons for stating so are as follows.
2. Appointment of judges of the superior courts are made under the provisions of Article 175-A of the Constitution. The said Article provides the procedure that is to be followed by the Parliamentary Committee but is does not provide the procedure that is to be followed by the Judicial Commission. Under sub-Article (4) of Article 175-A of the Constitution it was left to the Judicial Commission to devise its procedure by framing its own rules. Such rules were framed by the Judicial Commission described as Judicial Commission of Pakistan Rules, 2010. Rule 3 (2) of the said Rules provide that for each vacancy of a Judge in a High Court, nomination for appointment is to be initiated by the Chief Justice of the concerned High Court. Hence under the new dispensation also it is the Chief Justice of the concerned High Court who initially proposes a name against an anticipated or actual vacancy in his Court and sends it to the Chairman of the Judicial Commission. The Chairman then convenes meeting of the Judicial Commission. The nomination is discussed and deliberated and then either it is approved or rejected. We may add here that in case it is interpreted in a way that initial nomination of the person as a judge or Additional Judge can also be made by other members of the Judicial Commission then it might lead to a bizarre situation. The Judicial Commission for appointment in the High Courts comprises of thirteen members. Apart from five sitting Judges of the Supreme Court and two of the concerned High Court, the other six members of the Judicial Commission comprise of a retired Judge, Federal Law Minister, Provincial Law Minister, Attorney General and one representative each from Pakistan Bar Council and Provincial Bar Council. If they as members of Judicial Commission also become entitled to nominate persons for the consideration of the Judicial Commission in addition to the nominations sent by the Chief Justice of the concerned High Court then each of such members would be coming up with his own list of nominee whom he might consider suitable for appointment. There is strong possibility that at a time scores of nominations would be before the Judicial Commission for consideration. Pressure groups might also emerge lobbying with certain members of Judicial Commission to initiate nomination of persons of their choice. The entire process of appointment might get confused and become unworkable. It is to avoid all this that Rule 3(2) of Judicial Commission of Pakistan Rules, 2010 provides that initial nomination for appointment, be it for a Judge or Additional Judge of a High Court, is to be sent to the Judicial Commission by the Chief Justice of the concerned High Court. This has always been the procedure in the previous dispensation and has also been recognised under the present dispensation wider Rule 3(2) of Judicial Commission of Pakistan Rules, 2010. The only change that has been brought about after the 18th amendment to the Constitution is that determination of capability of a nominee of the Chief Justice of the High Court is not left to be decided by the Chief Justice of the concerned High Court and the Chief Justice of Pakistan only but to a thirteen member body called Judicial Commission of Pakistan.
3. While holding that initial nomination for appointment to a vacancy in .a High Court is to be made exclusively by the Chief Justice of the concerned High Court, we must also clarify here that when a nominee of the Chief Justice of a High Court is appointed as Additional Judge and the stage arrives to consider his name for confirmation as a Judge, the Chief Justice of the High Court is left with no alternative but to send the name of such Additional Judge to the Judicial Commission for consideration. In that event, it is not open to the Chief Justice of the High Court not to send the name of Additional Judge before the Judicial Commission. This is so because when the stage comes to send nomination for confirmation of an Additional Judge of a High Court, it is not a stage that for the first time his name is being initiated for nomination. It is a second stage and in this second stage the name has to be placed by the Chief Justice of the concerned High Court before the Judicial Commission. The decision whether to recommend his name for confirmation rests exclusively with the Judicial Commission, though the Chief Justice of the High Court is at liberty to express his own opinion about the performance of the Additional Judge. Therefore, the name of the Additional Judge at the time of considering his confirmation must be before the Judicial Commission and it is this body only which finally decides to recommend the Additional Judge for confirmation to the Parliamentary Committee. Hence, in so far as initiation of nomination for appointment as a judge or an additional Judge of a High Court is concerned, the name has to be sent to the Judicial Commission only by the Chief Justice of the concerned High Court but once a nominee is appointed as Additional Judge then to consider his appointment as a permanent judge, his name must be sent by the Chief Justice of the High Court to the Chairman of the Judicial Commission at the appropriate time and the Judicial Commission shall then decide whether to recommend to the Parliamentary Committee to confirm him as a permanent judge.
4. Coming to the appointment of Ghulam Sarwar Korai J and Irfan Saadat Khan J, we may add that the Parliamentary Committee while considering the recommendations of the Judicial Commission for confirmation of Ghulam Sarwar Korai, J., as Judge of High Court of Sindh obtained information from the Revenue Division of Federal Board of Revenue (FBR) as regards the income tax that he has been paying and the FBR informed the Parliamentary Committee that Ghulam Sarwar Korai, J has never paid income tax before his elevation as Additional Judge. Based on this report of FBR, the Parliamentary Committee assumed that Ghulam Sarwar Korai, J was either not actively practising law or that he had indulged in evasion of income tax. As to the first part of the assumption that Ghulam Sarwar Korai, J was not actively practising law and therefore not qualified to become judge is concerned, suffice to state that except for ascertaining antecedents of an appointee it is not the domain of the Parliamentary Committee to judge his calibre, legal acumen and judicial skills to perform as a judge on any basis. It has been so held by the Supreme Court in Muneer Hussain Bhatti's case reported in PLD 2011 SC 407. With regard to the second part of the assumption that Ghulam Sarwar Korai, J might have evaded tax, we are of the view that no stigma can be attached to a person on the basis of mere presumption. Practising primarily in rural Sindh, Ghulam Sarwar Korai, J may not have earned sufficient income which was taxable in a given year. Just because he had not paid income tax does not necessarily follow that he has indulged in evasion of tax. There should have been some tangible material to demonstrate tax evasion, in absence of which antecedents of judicial nominee cannot be judged nor his character can be tarnished.
5. As regards rejection of the nomination of Irfan .Saadat Khan, J by the Parliamentary Committee the same was based on reports furnished to it by two intelligence agencies. 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 that 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 through 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 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 term relatable 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.
(Sd.) (Sd.)
Faisal Arab, J Sajjad Ali Shah, J