LAL JAN KHA TTAK, J. Through this judgment, we shall also decide the connected writ petition bearing No.712-P of 2022 titled "Fazal Subhan etc Vs. Federation of Pakistan etc" and writ petition bearing No.370-P of 2022 titled "Naeem Ahmad Khattak Vs. Federation of Pakistan etc" as common question of law and fact is involved in all the three petitions wherein the petitioners have prayed to this court for issuance of writs declaring the decision of the Parliamentary Committee dated 19.01.2022 as illegal and unlawful. They have also prayed this court to issue directions to the Federation of Pakistan to appoint them as Additional Judges of Peshawar High Court as per the recommendations of the Judicial Commission dated 05.01.2022.
2. On 5th January , 2022, the Judicial Com mission of Pakistan (the Commission) held its meeting at Islamabad to consider the nominations of the following six nominees for their elevation as Additional Judges for Peshawar High Court: 1Mr.Fazal Subhan District & Sessions Judge, Nowshera.
2Mr.Shahid Khan District & Sessions Judge/Administrative Judge Accountability Court, Peshawar .
3Dr.Khurshid lqbal District & Sessions Judge/Presiding Of ficer, Special Court (Offences in Banks), Peshawar .
4Mr.Kamran Hayat Miankhel Additional Advocate General, Khyber Pakhtunkhwa.
5Mr.Muhammad Ijaz Khan Advocate Supreme Court.
6Mr.Muhammad Faheem W ali AdvocateAdvocate Supreme Court.
3. The Commission recommended the nominees at Serial No.1 to 3 for their elevation as Additional Judges of the High Court for a period of one year by the majority of ten to two while one Hon'ble member decided to abstain whereas the nominees at Sr.No.4 to 6 were recommended for appointment as Additional Judges of the High Court for a period of one year by the majority of twelve with one who had abstained himself.
4. The recommendations were then forwarded by the Commission to the Parliamentary Committee (the Committee) constituted under Article 175-A (9) of the Constitution of Islamic Republic of Pakistan, 1973 for confirmation.
5. In its in-camera meeting held on 19th January , 2022, the Committee confirmed the recommendations of the Commission unanimously regarding the nominees at Serial No.5 & 6 while recom mendations of the nominee at Serial No.4 was confirmed by majority of five to two whereas recommendations of the Commission qua the nominees at Serial No.1 to 3 were not confirmed and the matter was referred back to the Commission for its reconsideration keeping in view their seniority positions and competence as well.
6. Being aggrieved and dissatisfied with the decision of the Committee, the recommendees at Serial No.1 to 3 and one Naeem Ahmad Khattak, advocate have instituted the instant petitions praying therein for issuance of an appropriate writ for setting aside the decision of the Committee dated 19.01.2022 and directions to the respondents to implement the recommendations of the Commission dated 05.01.2022.
7. This court had directed the Committee, which is respondent No.2 in the petition, to file its parawise comments which have been furnished wherein, while defending the impugned decision, issuance of the desired writ has been opposed.
8. Learned counsel for the petitioners stated at the bar that the Committee cannot sit as an appellate forum on the recommendations of the Commission and that while rendering the impugned decision, it has exceeded its authority and travelled beyond its jurisdiction so vested in it by the Constitution. The learned counsel further submitted that the Committee through its decision has actually re-examined and reviewed the recommendations of the Commission qua the three recommendees by referring to their seniority positions instead of having a look at their personal antecedents which act of the Committee, the learned counsel argued, has violated the principles of separation of powers and independence of judiciary as enshrined in the Constitu tion. The learned counsel also argued with vehemence that the issue of the petitioners' seniority viz-a-viz District & Sessions Judge Arshad Kaleem was fully discussed by the Commission in-depth whereafter there was left no room and justification with the Committee to take upon it particularly when it was not its domain and area of discussion. The learned counsel further stated at the bar that the Judicial Commission is the highest constitutional body of the country headed by the Chief Justice of Pakistan which makes an objective evaluation of the suitability of a nominee for his elevation as a Judge of the High Court which process, after its approval, cannot be redo by the Committee in any manner .
9. While opposing the arguments of the learned counsel for the petitioners, the learned Deputy Attorney General for Pakistan raised a preliminary objection to the maintainability of the petitions on the ground that the petitioners are not aggrieved persons within the meaning of Article 199 of the Constitution of Pakistan, 1973. The learned DAG further argued that the Committee has acted well within its competence by not confirming the Commission's recommendations qua the three nominees as it was vested with such mandate per Article 175A(12) of the Constitution and as such no exception could be taken to its decision by this court.
10. We have heard arguments of learned counsel for the petitioners and of the learned DAG as well and have also gone through the record of the case.
11. Before touching merits of the case, we would like to decide first the question of maintainability of the petitions as raised by the learned DAG.
12. Undisputedly , the independence of judiciary is one of the salient features of our Constitution and it is the fundamental duty of every citizen to come forward for its protection from all sorts of inroads made on it either by the non-State actors or by any other authority performing functions under the Government or Constitution, therefore, for safeguarding the salient features of the supreme law of the land or on the eve of its violation every citizen of the country is not only an aggrieved person but any failure or negligence on his part to protect the Constitution will tantamount to his disloyalty to the State, therefore, the objection on maintainabilit y of the petitions by the learned DAD is turned out. Besides, the issue of maintainability of such like petitions has already been laid to rest by the Hon'ble Supreme Court of Pakistan in cases reported in PLD 2011 SC 407, PLD 2012 SC 1067 , PLD 2012 Sindh 531 and PLD 2015 Lahore 317 .
13. Moving on to merit of the case, admittedly , under Article 175A (12) of the Constitution, the Committee is empowered to not confirm the nominations forwarded to it by the Commission but under its such constitutional mandate the Committee has to act within its boundaries and spheres. While exercising its such mandate, the Committee cannot assume jurisdiction and powers of the Commission. If from the material produced before it, the Committee by a three-fourth majority of its total membership reaches to a conclusion that a particular nominee has no moral principles, is unscrupulous or his past is such that renders him unfit and which cannot be overlooked then of course in such like situation, the Committee will be well within its competence and will be quite justified in not confirming the recommendations of the Commission. But so far as professional caliber , competency , judicial skills and inter-se seniority positions of the members of the district judiciary recommended by the Commission for their appointment as Additional Judges of High Court are concerned, suffice it to say that same on no count will be the areas of the Committee for pondering over them what to say to differ with the recommendations of the Commission. We deem it appropriate not to have further discussion on the ibid issue in view of the elaborated judgment of the Hon'ble Supreme Court of Pakistan reported in PLD 2011 Supreme Court 407 as doing so will tantamount to lending light to the sun.
14. On the touchstone of the principles enunciated by the apex court in supra judgment, if recommendations of the Commission on the petitioners' nominations are looked into, it would appear that on their seniority positions and competency , a threadbare discussion had taken place whereafter through a majority decision, they were recommended for their elevation as Additional Judges of the High Court. True that some Hon'ble members of the Commission were of the view that because of the decision given in favour of Distri ct & Sessions Judge Mr.Kaleem Arshad, the process of elevation regardin g the nominees from the district judiciary be dropped but in view of the judgment supra the majority decision of the Commission cannot be undone by the Committee on the strength of the dissenting views of some of the Hon'ble members of the Commission.
15. In view of the very detailed and extensive discussion by the Commission on the seniority positions of the three nominees and on their competency as well, it was unfair and beyond the constitutional mandate and powers of the Committee to differ with the recommendations of the Commission and by doing so, the Committee has assumed to itself the status of an appellate forum of the Commission which act of it cannot be countenanced for its being alien to the independence of judiciary being one of the grundnorms of our Constitution. At this juncture, it would be very relevant and appropriate to refer to the century old very wise saying that the work suits in the hands of the one skilled to do it and if someone else does it, he's sure to mess it up. It is also worth to mention that in the light of the judgment delivered in Munir Hussain Bhatti's case (PLD 2011 SC 407), it has been ruled by Lahore High Court in PLD 2015 Lahore 317 as under:- "Munir Hussain Bhatti's case (supra) has settled that the decision of the Parliamentary Committee is subject to judicial review . In the present case, Parliamentary Committee instead of carrying out its constitutional obligation and relying on independent evidence to judge the personal antecedents of the nominated person, has instead, re- examined and reviewed the findings of the Judicial Commission by examining the same material and evidence already examined and analyzed by the Judicial Commission and by commenting on the legal antecedents of the candidate rather than the personal antecedents which falls within the jurisdictional purview of the Parliamentary Committee. The Committee has, therefore, transgressed its constitutional limits and entered into the territory reserved for the Judicial Commission, thereby offending the principles of separatio n of powers and independence of judiciary . The Committee does not enjoy the power to review , reverse or substitute the decision of the Commission. The impugned decision of the Parliamentary Committee is, therefore, unconstitutional".
16. For what has been discussed above, we are constrained to accept all the three petitions and consequently , on setting aside the decision of the Committee dated 19.01.2022, direct the Federation of Pakistan through Secretary , Ministry of Law, Justice and Parliamenta ry Affairs, Islamabad to implement forthw ith the recommendations of the Commission dated 05.01.2022 by issuing notification of appointment of the three petitioners/nominees as Additional Judges of Peshawar High Court.
17. Above are the reasons for our short order of even date which is reproduced hereinbelow:- "For the detailed reasons to be recorded later, this and the connected writ petitions bearing No.370 & 712-P of 2022 are allowed and on setting aside the decision of the Parliamentary Committee dated 19.01.2022, we direct the Federation of Pakistan to implement forthwith the recommendations of the Judicial Commission of Pakistan dated 05.01.2022 by issuing notification of appointment of the three recommendees/petitioners as Additional Judges of Peshawar High Court, Peshawar".