1. ' MUHAMMAD AFZAL ZULLAH, J.--These appeals through leave of the Court, are directed; against the judgment dated 24-4-1989 of the Sindh High Court; whereby Constitutional Petitions seeking implementation of Constitutional provisions relating to the separation of the Judiciary from the Executive, were allowed with the following directions:-- "(A) The respondent in the first petition i,e. Respondent No,2 (i,e. The Province of Sindh in the second petition is directed:-
(i) to issue necessary Notification in terms of subsection (2) of section 1 of Ordinance No,XII of 1972 for enforcing the provisions of the aforesaid Ordinance for bifurcating magistracy into Judicial Magistrates and Executive Magistrates and to place the Judicial Magistrates under the Administrative control of the High Court within a period of six months;
(ii) to issue necessary Notification under sub-rule (2) of Rule 2 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 and Rule 4 of the Sindh Rules, 1974, notifying the High Court as the authority within a period of sixty days;
(iii) to initiate legislative measures within a period of six months in order to make necessary amendment in the West Pakistan Civil Courts Ordinance, 1962, Cr.P.C. Sind Civil Servants (Efficiency and Discipline) Rules, 1973, the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, in conformity with above Articles 175 and 203 of the Constitution.
(B) Respondent No,1 (i,e. The Federation of Pakistan) in the second petition is directed to initiate all legislative/administrative steps/measures to bring the existing laws relating to or affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period of six months."
2. ' This Court while granting leave to appeal suspended the operation of the impugned judgment in respect of the direction contained in Paragraph 'A' (ii) reproduced above. Regarding the remaining order it was observed as follows:- "We expect that the hearings of the appeals will be decided before the expiry of six months'period prescribed for the implementation of the rest directions of the High Court in the impugned judgment and therefore, we are not inclined to stay the operation of those directions."
3. ' Today, when the matter came up for hearing learned Attorney-General opened the argument in support of the pleas taken in the petitions for leave to appeal and particularly on the points which were noted in the order for grant of leave to appeal. On a question; as to whether there is any serious objection from the appellants' side to the separation of the judiciary from the executive, learned Attorney-General stated that it is not so; and further that according to appellants also the Constitutional mandates in this behalf whatever their import, required to be implemented. Not only this he also produced an additional paper book containing six Annexures collected under the subject heading SEPARATION OF JUDICIARY FROM THE EXECUTIVE in order to show that the appellants are already taking necessary steps to do the needful in this behalf.
4. ' The first annexure is a Notification dated 29th June, 1988 issued by the Government of Pakistan Ministry of Justice and Parliamentary Affairs (Justice Division) reconstituting a Committee for the implementation of "The Constitutional requirement of Separation of the Judiciary from the Executive." Reference in this Notification was made to an earlier similar Notification dated 1st June, 1988 constituting a Committee "to expedite the implementation of the Constitutional requirement of Separation of the Judiciary from the Executive." The terms of reference which also forms the subject-matter of the Notification require the Committee to prepare: "a comprehensive scheme for implementing the Constitutional requirement of Separation of the Judiciary from the executive as laid down under Article 175, clause (3) of the Constitution of Pakistan". The Committee was to hold meetings and submit periodic reports. It could also co-opt additional members, if necessary.
5. ' Annexure-II is a letter sent by the Government of Sindh Law Department on 16th June, 1988 marked as TOP PRIORITY/IMMEDIATE. It was sent to the Provincial Secretaries of three Departments; namely, Services, Home and Finance. The subject-heading was again the same; namely, separation and the contents of the letter show that the Chief Secretary wanted to have concrete proposals with administrative and financial implications with specific terms regarding the scheme of Separation of the Judiciary from the Executive. They were to cover the number of additional posts with scales of pay; Rules for career, development, retirement etc. Of the Officers/Staff and also financial implications on yearly basis to include also the hiring of Courts and residential buildings and salaries etc. For all posts. The proposals of the Law Department were enclosed with this letter. A similar communication was addressed on 27th July, 1988 marked as TOP PRIORITY, to the Registrar of the High Court of Sindh with similar subject-matter. This is Annexure III.
6. ' The next annexure is another letter dated 17th December, 1988 from the Government of Sindh to its concerned Secretaries as also to the Registrar of the High Court for holding a "meeting by the Cabinet Wing to expedite implementation of the Federal Cabinet Decision and to ascertain the progress achieved in this behalf by the concerned departments, in order to report the same to the Cabinet Division who are repeatedly reminding for the same ". The subject-matter again was the same as in the already noted annexures. The minutes of the meeting have also been filed as Anncxure-V. Various aspects of the questions already mentioned as involved in the separation of the Judiciary were considered in all seriousness; it was noted that the "exclusion of the members of subordinate judiciary from the purview of the Civil Services Tribunal as a measure for the separation of judiciary from the executive, Secretary (GA) informed that the law was being amended in that regard". List showing requirements of Judicial Magistrates in the Province of Sind and estimated cost for creation of one post of Civil Judge/Ist Class Magistrate for one year, was also prepared and appended as anncxures to the recorded minutes of the meeting.
7. ' The last annexure which has been marked in the list submitted by the Attorney-General as 'very important' is a letter marked MOST IMMEDIATE sent by the Government of Sind Services and General Administration Department on 4th October, 1989, to the Secretary to Government of Sindh, Finance Department; Secretary to Government of Sindh, Law Department as also to Secretary to the Chief Minister, Sindh. It is indeed an important one as it was acknowledging that there was a need for the separation of the Judiciary from the Executive. It's one facet; namely, that "the magistracy is to be bifurcated into Judicial Magistrates and Executive Magistrates as laid down in the Law Reforms Ordinance, 1972 the former to be placed under the administrative control of the High Court", was noticed for "implementation by the Provincial Government". Accordingly "to fulfil this Constitutional obligation" and further as "reinforced by the Sindh High Court Order dated 24-4-1989", it was proposed to create in the first instance 15 posts of Judicial Magistrates alongwith the supporting staff. A schedule in this behalf was annexed with the letter which also contained the further proposal that an equal number of posts, in course of time, would be reduced on the executive side.
8. Not only this the Finance Department was requested to "convey its concurrence at an early date".
9. All this no doubt shows a resolve on part of the Federal Fovernment as also on the part of the Provincial Government of Sindh to implement the Constitutional mandates and requirements relating to the separation of the Judiciary. It is in line with all this that even in the petition for leave to appeal in this case in paragraph 6 thereof, it has been stated as follows:-- "That at the hearing, the petitioner as well as the pro forma Respondent No,5 i,e. The Federation of Pakistan had made their position clear in the relation to the principle of separation of the judiciary from the executive but had opposed the petitions on the grounds that the reliefs prayed for could not be granted under Article 199 of the Constitution and that both Governments had taken over only a few months before the hearing and were considering the measures to be taken for the purposes of Article 175(3) of the Constitution, which required a joint effort at Federal as well as Provincial levels for all the four Provinces to achieve uniformity and avoid contradictions and inconsistencies. The petitioners reiterate that they on principle are for the separation of judiciary from executive but within four corners of the Constitution. That long before the hearing the matter, the Hon'ble Chief Justice of the High Court of Sindh by D.O. Dated 11th October, 1988 addressed to the then Chief Minister of Sindh, had pointed out some difficulties in effective application of Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and had expressed his view for issuing a notification under clause (2) of Rule 2 of the said Rule to appoint The Chief Justice" as "Authority" in respect of District & Sessions Judges, Additional District and Sessions Judges, Senior Civil Judges, Assistant Sessions Judges and Civil Judges."
10. ' It was also submitted in the petition that "a proper and thorough planning and scheme was necessary for implementation of the Constitutional mandate into operation progressively".
11. ' It is perhaps the aforestated position adopted in the petition for leave to appeal when examined in the context of the afore-analysed annexures and material that the learned Attorney-General, in order to take the matter further to its logical ends, made the following proposals:-
(i) That although the Federal Government and the Province of Sindh are parties in these matters as appellants, it is essential that the other three Provinces through their respective Governments should also be impleaded as parties, as they are also necessary parties--a formal application in this behalf was also submitted on behalf of the appellants; and
(ii) That without prejudice to the points raised a commission may be appointed and asked to go into the question of the implementation of the Constitutional mandate regarding the separation of the Judiciary from the Executive.
12. ' No objection was raised with regard to the first suggestion and prayer. We, therefore, ordered accordingly. The learned Law Officers appearing for their respective Provincial Governments of the remaining three Provinces accepted notice on their behalf in Court.
13. ' Regarding his second proposal Mr. Sharaf Faridi appearing for the respondents' side (who himself is also a party) hesitated in the first instance to accept it as, according to him the mode of appointment and functioning of "commissions" in some matters has not only been time consuming but some times counter productive. The learned Attorney-General while stating that he would not have any objection to it being called commission or a committee; asserted that it would be a useful method for implementation of the mandate as soon as possible particularly when it would be made subject-matter of the Court Order and also directly responsible to the Supreme Court, in this behalf. He cited the case relating to dissolution of National Assembly (reported as PLD 1988 SC 166) wherein the holding of the General Elections and the date in that behalf was made part of Court Order. After some further discussion on various aspects of the proposal including the membership of the committee, it was finally agreed that it should be constituted for the purpose of implementation of the Constitutional mandate and requirements regarding separation of the Judiciary from the Executive and further that it should go into operation forthwith. We .
14. ' The committee shall consist of:- ' A nominee each of the Federal and Provincial Governments. A nominee of the Chief Justice of Pakistan.
15. ' A nominee each of the Chief Justices of all the High Courts.
16. ' Secretary, Ministry of Law and Justice--Member/Convener. A nominee of the Pakistan Bar Council.
17. ' The Presidents of the High Court Bar Associations or their nominees (at the main Registries).
18. ' Some discussion was also held on the question as to whether the committee should send its report and recommendations to the Court only as the "final report" or after going into action forthwith, it should submit interim/periodic reports not only about its recommendations but also actions which in the meanwhile can be taken by the concerned authorities, agencies or functionaries. In our view, the second alternative will, in the circumstances, be more practical as in those areas of the subject-matter where there is already agreement, the implementation can start immediately. And the committee would report such like actions of implementations in the interim reports which should not be delayed at all. Similarly if the committee finds some areas of difficulty only, or of some disagreement, it can submit interim reports for seeking the assistance of the Court so as to remove the difficulty. It will be only in the areas of serious disagreement that further time might be needed by the committee to find amicable solutions and/or to seek verdict of the Court.
19. Accordingly it is directed that the committee which would treat the subject-matter as Top Priority and Immediate, having gone into operation forthwith, would submit the interim reports to this Court within three months and the appeals shall be fixed for further hearing on 3rd February, 1990. It will hold meetings at Islamabad.
20. ' It was brought to our notice that some petitions on the same subject-matter namely separation of the Judiciary from the Executive are pending before the High Court/s. It is hoped that the hearing therein shall not be treated as having been stayed--nor the respective High Court/s would wait for the decision of these appeals and even if day to day hearing is necessary, would decide those matters as soon as possible.
21. ' In so far as the implementation of the direction given by the High Court of Sindh in the impugend judgment is concerned, the operation of a part thereof-para. A(i), was suspended in the order granting leave to appeal dated 21-6-1989. The request for suspension of the operation of the remaining parts of the direction, which were to be implemented within six months of the announcement of the judgment of the High Court, was then declined. As the afore-constituted committee is going into operation under the directions of this Court, it would be just and proper that the formal implementation of the operation of all the directions of the High Court reproduced in the opening part of this order, be suspended till further ordeRs, It is to facilitate the working of the committee which, of course, has been formed with a view to achieve the same objective; namely the implementation of the Constitutional mandates and requirements on the subject-matter of separation. This, however, would not mean that the concerned agencies/functionaries would not proceed to do the needful in the said implementation on account of this interim order being passed by the Court. For example, the processes already commenced by the Federal and/or Provincial Governments or other concerned agencies/functionaries for the said implementation, shall not stop, on account of this interim order. It is to remove any difficulty which might be encountered on account of the High Court having fixed timings/period for the enforcement of implementation of its orders and directions that the operation thereof has been suspended.