' RAJA AFRASIAB KHAN, J.--The petitioner, Noor Muhammad Qureshi, Advocate,, has instituted Writ Petition No,9893 of 1994 against Federation of Pakistan and 21 others, praying that notification dated 4-8-1994 whereby respondents Nos.5 to 21 were elevated as Judges of Lahore High Court, may be declared without lawful authority and of no legal consequence. Similarly, Habib-al- Wahab-Alkhari, Advocate, and another have filed Writ Petition No,875 of 1994(RWP) against the Federation of Pakistan and 33 others with a prayer that respondents Nos.27 to 34 may be declared to have been appointed as Judges of the Lahore High Court. It is also prayed that out of respondents Nos.7 to 26, those who have been recommended by the present Acting Chief Justice of Lahore High Court, may be declared to have been elevated without lawful authority and of no legal effect. It is prayed that out of the newly elevated 20 Judges who were recommended by the outgoing Chief Justice may be declared to be the permanent Judges of the High Court. Another prayer is that a direction may be issued to the Federal Government of Pakistan to see to it that appropriate legislation is made under Articles 176 and 192 of the Constitution whereby the number of Judges and the method for their elevation has to be provided and till the time, such law is made, Judges may be appointed according to the common Islamic Law. A direction is also sought to be issued in the nature of mandamus to the respondents Nos.1 to 3 not to transfer any Judge of the High Court against his will to the Federal Shariat Court of Pakistan. Through the third Writ Petition No,10186 of 1994 having been instituted by Mr. M.D. Tahir, a practising lawyer and member of Lahore High Court Bar Association, it is prayed that the act of respondents whereby Mr. Justice Ausaf All Khan, Mr. Justice Khan Riaz-ud-Din Ahmad, MrJustice Saeed-ur-Rehman Farrah, MrJustice Mian Abdul Khaliq and Mr. Justice Muhammad Nawaz Abbasi, were not confirmed as Judges of this Court, may be declared without lawful authority and further they should be allowed to perform the functions of their offices. Similarly, C.M. No,2127 of 1994 in Writ Petition No,9893 of 1994 has been filed by All Baqir Najfi, Advocate and three others under Order I, Rule 10, C.P.C. For being impleaded as respondents in the said petition even at the motion stage because mere pendency of the cases in hand was adversely affecting their professional prospects. All these matters substantially pertain to the same subject-matter and also common questions of law are involved in them and, as such, have been heard together and are being disposed of by this judgment.
2. The facts, in brief, as mentioned in the first writ petition are that Mr. Justice Raja Abdul Aziz Bhatti.
Mr. Justice Arif Iqbal Hussain Bhatti, Mr. Justice Muhammad Aqil Mirza. Mr. Justice Abdul Hafeez Cheema, Mr. Justice Ch. Khurshid Ahmad Mr. Justice Sharif Hussain Bokhari, Mr. Justice Riaz Hussain. Mr. Justice Ch. Muhammad Nasim. Mr. Justice Muhammad Asif Jan. Mr. Justice Amir Alam Khan. Mr. Justice Rana Muhammad Arshad Khan. Mr. Justice Karamat Nazir Bhindari, Justice Mrs. Nasira Javid Iqbal. Mr. Justice Ahmad Saeed Awan. Justice Mrs.Fakhar-un-Nisa Khokhar. Mr. Justice Ch. Iftikhar Hussain. Justice Miss Talat Yaqub). Mr. Justice Rao Naeem Hashim Khan. Mr. Justice M.
Javed Buttar and Mr. Justice Tassadiq Hussain Jilani have been appointed by the President of Pakistan at the advice/recommendation of the Prime Minister of Pakistan on political considerations and that they were not qualified to be appointed as such. It is stated that MrJustice Ahmad Saeed Awan was appointed and performed his functions as State Minister for Information and Broadcasting in the previous P.P.P Government. According to the learned counsel, he had not even practised at District Courts level. MrJustice Ch. Khurshid Ahmad contested elections from Faisalabad on the Ticket of P.P.P. His practice as a lawyer was limited to Faisalabad Courts. Mr. Justice Rao Naeem Hashim is a known politician of P.P.P. And is the son of Rao Hashim Khan an M.NA. Of P.P.P. From Pakpattan. He had been practising in Pakpattan Courts. 'Mr. Justice Riaz Hussain is stated to have been practising in Jampur Courts. He is a close associate of President of Pakistan.
Justice Mrs. Nasira Javid Iqbal was not qualified to be elevated because her standing at Bar is still less than ten years as required by the Constitution'. MrJustice Ch.Iftikhar Hussain is stated to be the real brother of Governor of Punjab who was, therefore, not competent to recommend his own brother for his elevation as Judge of this Court. Mr.Justice Arif Iqbal Hussain Bhatti had contested National Assembly election in the year 1990 against Mian Muhammad Nawaz Sharif from NA-95, Lahore, as a nominee of P.P.P.. Justice Mrs. Fakhar-unNisa Khokhar is a known political worker of P.P.P.. Mr. Justice M. Javed Buttar was an active member of People's Lawyers Forum. Mr. Justice Raja Abdul Aziz Bhatti had been a close associate of Zulfiqar All Bhutto and is a strong supporter of P.P.P.
It is stated that Mr. Justice Muhammad Asif Jan was appointed as Assistant Advocate-General during the days of Zulfiqar All Bhutto and during the last regime of P.P.P. Government, he was appointed as Deputy Attorney-General for Federation of Pakistan. About Mr. Justice Sharif Hussain Bokhari, it is said that he had been defending Mr. Zulfiqar All Bhutto in a criminal case registered against him in the High Court. He has also been defending Mrs. Benazir Bhutto before the High Court in the Presidential References, initiated against her. Similarly, Mr. Justice M. Aqil Mirza is said to be an active and strong worker of P.P.P. And was also appointed as Assistant Advocate-General during the days of Mr. Zulfiqar All Bhutto. Mr. Justice Tassadaq Hussain Jilani is alleged to have been appointed because of his close relationship with Nawabzada Nasrullah Khan, an old politician and an ally of P.P.P. So far as, Mr. Justice Rana Muhammad Arshad Khan is concerned, it is submitted that he is a close friend of Mian Manzoor Ahmad Wattoo, the Chief Minister of Punjab and on account of this friendship he has been elevated to the High Court. According to the learned counsel, Mr. Justice Ameer Alam Khan has been appointed as Judge because he won the election of President of Lahore High Court Bar Association due to the active support having been given to him by the lawyers of P.P.P. And that in the said contest the candidate belonging to Muslim League was defeated by him. It has particularly been alleged that Justice Miss Tallat Yaqub never worked as a lawyer and that she had been the President of P.P.P. Women Wing, Lahore. She also represented her party at International forums.
' In the second writ petition, it is mentioned that elevation of 20 Judges was without lawful authority because the Hon'ble Mr. Justice Muhammad Ilyas, the Acting Chief Justice, was not competent to recommend their names for their appointment as such. It is stated that Mr. Justice Ausaf Ali Khan, Mr.Justice Khan Riaz-ud-Din Ahmad, Mr. Justice Saeed-ur-Rehman Farrukh, Mr.Justice Mian Abdul Khaliq and Mr. Justice Muhammad Nawaz Abbasi shall be deemed to have been made the permanent Judges for all intents and purposes. It is also alleged that transfer of Mr. Justice Mian Mahboob Ahmad to the Federal Shariat Court and in lieu thereof, the appointment of Mr. Justice Muhammad Ilyas as Acting Chief Justice had to be declared without lawful authority and of no legal consequence to meet the ends of justice as the said transfer was based on mala fides.
Almost to the same effect is the third writ petition instituted by Mr. M.D. Tahir, Advocate.
3. Mr. A.K. Dogar, learned counsel has argued that elevation of theabovenamed seventeen Judges to the High Court was based on political consideration because the necessary conditions having been mentioned in Article 193 of the Constitution were not at all kept in view while making such appointments. He contends that all the newly-appointed Judges belong to P.P.P. And that they had been holding various offices in the said political organization and as such, he maintains that appointments of these Judges are based on purely political considerations just to accommodate their workers and while doing so, constitutional and legal requirements were ignored in an arbitrary manner by the respondents. He says that the Prime Minister of Pakistan has acted with mala tide inasmuch as she has packed this Court with die-hard workers of her political party. According to the learned counsel, workers of political parties are debarred from being appointed as Judges of the superior judiciary because it is always desired and expected that the Judges shall be taken from the people who are independent and impartial in the political set-up of the country. Learned counsel with emphasis argues that women cannot be appointed as Judges in Islam. In this view of the matter, learned counsel states that these appointments were based on mala fide and as such, an action based on mala fide is always held to be an action without lawful authority and of no legal consequences. In support of the plea, learned counsel relies upon Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698) Zia-ur-Rehman v. The State (PLD 1973 SC 49) and Saeed Ahmad Khan v. State (PLD 1973 SC 151).
' Mr. Habib-al-Wahab Alkhari, in the second writ petition contends that the Hon'ble Acting Chief Justice was not competent to recommend respondents Nos.7 to 26 to be appointed as Judges because under the Constitution such recommendations could only be made by the permanent Chief Justice against permanent vacancies. He relies upon Articles 192, 193 and 197 of the Constitution to submit that these provisions do speak of permanent Chief Justice and not the Acting Chief Justice in the matter of appointment of Judges. On the strength of Article 2A of the Constitution, he argues that these appointments are in direct conflict with the holy Injunctions of Islam. Learned counsel has also repeated the arguments having been addressed by Mr. A.K. Dogar by saying that appointment of these Judges is based on mala fide and political considerations and as such, are no appointments at all.
' Mr. M.D. Tahir, learned Advocate submits that there was absolutely no legal justification not to confirm five Judges mentioned above because of their excellent performance in the disposal of judicial work entrusted to them during their tenure of office. He adds that there were no complaints having been ever lodged against them by anybody; He sums up by saying that appointment of these Judges would be deemed to have been made on permanent basis keeping in view the fact that the vacancies were permanent in nature.
4. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General argues that questions of fact have been agitated by the petitioners which, of course, cannot be determined in these proceedings. He states that the respondents (learned Judges) were duly recommended by the Acting Chief Justice, the Governor of the Punjab, Chief Justice of Pakistan and the Prime Minister of Pakistan for their appointment as Judges and this being so, the President of Pakistan had no alternative but to accept such recommendations under the Constitution. Similarly, Mr. Abdul Sattar Najam, the learned Advocate-General has refuted the arguments of learned counsel for the petitioners by stating that it is not a disqualification for a person to be appointed as Judge of the High Court under the Constitution and the law merely on the ground that at one stage, he belonged to one or the other political party or he had indulged in politics by participating in the general elections of the country.
5. The learned counsel for the parties have been heard at considerable length and the record has also been gone through minutely. I have not been persuaded to agree with the learned counsel for the petitioners inasmuch as in my view, appointments of respondent-Judges have been made in accordance with the Constitutional provisions. I am satisfied to hold that no provisions of the Constitution have been violated by the President in elevating the respondents as Judges of this Court. It may be stated that all the Judges have been prominent members of their respective Bar Associations. There is no evidence that some of them as stated in the first petition had not been practising as Advocates in Courts. It is not the case of the petitioners that the respondents (learned Judges) are not mentioned in the Register duly maintained by the Punjab Bar Council as Advocates of the High Court to show that they are not registered as such. There is also not a shred of evidence brought on record to prove that some of them did not practise in Courts of Pakistan and as such, do not possess the requisite qualifications for their elevation. The burden was on the petitioners to prove to the satisfaction of this Court that they did not qualify to be appointed as Judges because they had not practised with a required length of period. A mere word of mouth would not be enough to proceed further in the case. The question, whether or not some of them were practising Advocates of High Court is, undoubtedly, a question of fact which cannot be determined by this Court in the exercise of its extraordinary jurisdiction under Article 199 of the Constitution. A predominant requirement of Article 193 of the Constitution is that, to be a Judge, a person should be an Advocate of High Court and that his length of standing at bar should not be less than ten years. In order to better appreciate the controversy, Article 193 is reproduced below:-- "193.--(1) A Judge of a High Court shall be appointed by the President after consultation--
(a) with the Chief Justice of Pakistan; with the Governor concerned; and
(b) except where the appointment is that of Chief Justice, with the Chief Justice of High Court.
(2) A person shall not be appointed a Judge of High Court unless he is a citizen of Pakistan, is not less forty years of age, and--
(a) he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or
(b) he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or
(c) he has, for a period of not less than ten years, held a judicial office in Pakistan.
' Explanation.--In computing the period during which a person has been an advocate of a High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.
(3) In this Article, "District Judge" means judge of a Principal Civil Court of original jurisdiction."
From the close reading of Article 193(1), it is clear that an Advocate of High Court not less than 10 years' standing is eligible for elevation to the High Court. It does not necessarily mean that he/she has been a practising Advocate of the High Court for the aforesaid period. This view finds support from Prof. Chandra Prakash Agarwal v. Chaturbhuj Das Parikh and others (AIR 1970 Supreme Court 1061). The relevant observations are as follows:- "Counsel for the appellant repeated before us the same contentions which were urged first before Broome and Kummar, JJ., and later on before Mathur, J. In our opinion the language used in Article 217(2)(b) is plain and incapable of bearing an interpretation other than the one given by Broome, J., and agreeing with him by Mathur, J.
5. One broad point against the interpretation sought by counsel for the appellant would be that the expression "an advocate of High Court" in its ordinary plain meaning must mean a person who has by enrolling himself under the relevant provisions of law become an Advocate of a High Court. If it was intended that the qualification under Article 217(2)(b) should be that a person appointed to the office of a Judge of a High Court should have practised in a High Court and that practising in a Court or Courts subordinate to it would not answer . The qualification, the language used in sub- clause (b) of Article 217(2) would have been as follows:- 'A person shall not be qualified for appointment as a Judge of a High Court unless he has for at least ten years practised as an advocate in a High Court Or in two or more such Courts in succession.'
6. Apart from this aspect, some of the earlier statutes bearing on the same subject have also used the very same or similar expression. The Legal Practitioners Act, 1879 defined by section 3 a "Legal Practitioner" as meaning an Advocate, Vakil or Attorney of any High Court, a Pleader, Mukhtar or Revenue-agent. Section 4 of that Act provided:-- "Every person now or hereafter entered as an Advocate or Vakil on the roll of any High Court under the letters patent constituting such Court or under section 41 of this Act, or enrolled as a pleader in the Chief Court of the Punjab under section 8 of this Act, shall be entitled to practise in all the Courts subordinate to the Court on the roll of which he is entitled and any person so entered who ordinarily practises in the Court on the roll of which he is entered or some Court subordinate thereto shall, notwithstanding anything herein contained, be entitled, as such, to practise in any Court in the territories to which this Act extends other than a High Court on whose roll he is not entered or with the permission of the Court in any Court on whose roll he is not entered..."
' Section 41 of the Act empowered a High Court to make rules as to the qualifications and admission of proper persons to be "Advocates of the Courts" and subject to such rules to enroll such and so many Advocates as it thought fit. These provisions clearly show that Advocates enrolled under section 41 were enrolled as advocates of a High Court and were entitled, once enrolled, to practise either in the High Court or Court subordinate to such High Court or both. There was, thus, in the case of Advocates, so enrolled no distinction between those who practised in the High Court and those who practised in the Courts subordinate to such High Court as they were entitled on enrolment, as aforesaid, to practise either in the High Court or in Court or Courts subordinate thereto or both. The Indian Bar Councils Act, XXXVIII of 1926 also defined as 'advocate' meaning one "entered in the roll of Advocates of a High Court under the provisions of this Act."
Section 8 laid down that no person would be entitled as of right to practise in any High Court unless his name was entered in the roll of "The Advocates of High Court maintained under this Act." Under section 8(2), a High Court was required to prepare and maintain " a roll of advocates of High Court" in which should be entered the names of (a) all persons who were, as advocates, Vakils or pleaders, entitled as of right to practise in the High Court immediately before the date on which this section came into force in respect thereto; and (b) all other persons who were admitted to be "advocates of the High Court" under this Act. Section 9 empowered the Bar Council to make rules to regulate the admission of persons to be "Advocates of the High Court", and section 10 gave power to the High Court in the manner therein provided to reprimand, suspend or remove from practice "any advocate of the High Court" whom it found guilty of profession or other misconduct". Section 14(1) of the Act provided that an advocate, i,e, one whose name was entered under this Act in the roll of Advocates of a High Court, shall be entitled as of right to practise in the High Court of which he is an Advocate or in any other Court save as otherwise provided by subsection (2) or by or under any other law for the time being in force. Once, therefore, the name of an Advocate was entered in the roll of advocates of a High Court under one or the other Act, he was entitled to practise in the High Court and in Courts subordinate thereto or in any other Court subject of course to the provisions aforesaid. He was thus an Advocate of the High Court irrespective of whether he practised in the High Court or in the Courts subordinate thereto, and as seen from section 10 of the Bar Councils Act, he became amenable to the disciplinary jurisdiction of the High Court by reason of his being enrolled as an advocate of the High Court. The expression "an advocate of a High Court" must, therefore, mean, in the light of these provisions, an advocate whose name has been enrolled as an advocate of a High Court. No matter whether he practised in the High Court itself or in Courts subordinate to it or both. The expression "an advocate or a pleader of a High Court " having thus acquired the meaning as aforesaid, it must be presumed that a similar expression, namely, a pleader of a High Court for a period of not less than 10 years was used in the same sense in section 101(3) (d) of the Government of India Act, 1915, when that section laid down the qualifications for the office of a Judge of a High Court in the case of a pleader. The same phraseology was also repeated in section 220(3)(d) of the Government of India Act, 1935, except for one change, namely, that in calculating ten years' standing his standing as a pleader of two or more High Courts in succession was also to be included."
' A similar view was expressed in V.G. Row v. A. Alagiriswamy and others (AIR 1967 Madras 347) which is to the following effect:- "In a writ petition disposed of by Kailsam, J., in which an identical question arose and precisely the same arguments appear to have been advanced by Mr. Vasantha Pai, the learned Judge observed, referring to the Bar Councils Act, 1926, that a roll of the Advocates had to be prepared by the High Court under section 8(2) of the Act, including all persons who were as advocates, vakils or pleaders entitled as of right to practise in that High Court and of other persons who have been admitted to be advocates of the High Court under the Act. The learned Judge held that an advocate of a High Court accordingly meant a person who was an advocate and had the right of practice in the High Court. He repelled the contention, that for the purpose of Article 217, Advocates should be classified, one into a category of persons actually practising in the High Court, and another into one of persons not actually practising in the High Court. The decision in that case was accordingly that this Article of the Constitution does not in terms require that before an advocate could be appointed as a Judge of the High Court, he should have been actually practising in that or in any other High Court for the requisite period, but that it would suffice if he were entitled to practise in a High Court. With respect, I agree with this view."
The above-quoted case-law is a befitting reply to the argument of the learned counsel for the petitioners. It, therefore, fails and is rejected. The fact that the said Judges had been advocates of the High Court with required period of practice, was enough for the respondent-authorities to recommend their names for such appointments. It is not denied that the Hon'ble Acting Chief Justices the Governor of the Punjab, the Chief Justice of Pakistan and the. Prime Minister of Pakistan recommended them for their elevation. These recommendations having been made by the authorities under Article 193 of the Constitution were accepted by the President of Pakistan. There is, therefore, no lawful warrant to interfere in such a situation where everything was done in accordance with the Constitution and the law. The contention that appointment of the Judges was based on mala fide is equally without any substance inasmuch as there is no evidence to prove that there was any mala fide on the part of the President of Pakistan in the matter of these appointments. It may be easy to allege mala fide but it would always be difficult to prove it on the basis of convincing and reliable evidence. It may be noted that there are only unsupported allegations of the petitioners having been made by them in the petitions and their short affidavits in support thereof. Some press-cuttings have been placed before the Court and nothing else has been shown to prove their plea of mala fide. These press-cuttings and the short affidavits of the petitioners, in our view, would be grossly inadequate to show that the respondent-functionaries acted with mala fide. This being so, the principle laid down by the Supreme Court in the cases of Zia-ur-Rehman, Saeed Ahmad Khan and Jamil Asghar would not apply to these cases for lack of evidence on the allegations of mala fide.
6. To be a member of a political party is also not, in our view, a disqualification for a member of the legal fraternity to be a Judge of High Court, if he is otherwise, qualified under the Constitution to hold such an office. It is the fundamental right of every citizen to be a riember of a political I F party of his choice under Article 17 of the Constitution. The said Article reads as follows:-- "17. Freedom of association.--(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of (sovereignty or integrity of Pakistan, public order or morality).
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration refer the matter to the Supreme Court whose decision on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with law."
' An apt observation was made by the learned Supreme Court in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) which is as follows:- "Actually the objection being raised by the learned counsel for the respondents before us here stands practically answered already in Benazir Bhutto's case PLD 1988 SC 416. It was herein, inter alia, also observed:-- `Reading Article 17(2) of the Constitution as a whole it not only guarantees the right to form or be a member of a political party but also to operate as political party. Again, the forming of a political party necessarily implies the right of carrying on of all its activities as otherwise the formation itself would be of no consequence. In other words, the functioning is implicit in the formation of the party."
The respondents (learned Judges), therefore, exercised their fundamental right, if they, in their own wisdom, joined some political party before their elevation. Merely by doing so, they did not earn any disqualification for being' appointed as Judges of the High Court. If this is to be accepted as a disqualification, I am then, sure that millions of citizens of this country would automatically become disqualified to hold any office. Almost every member of the society is divided politically and every citizen would belong to one or the other political divide. This is particularly true about lawyers and surely a vast majority of them would belong to one or the other political party. If it were so, it would have been mentioned in Article 193 of the Constitution as a disqualification. The above view finds support from the law declared in case of State of Madhya Pradesh v. Ramashanker Raghuvanshi, etc. (AIR 1983 SC 374), in paragraph 3 thereof it has been held that a pre-service political affiliation is not a disqualification to join the service.
Another argument of the learned counsel was that women were not qualified to be appointed as Judges in view of the Islamic Injunctions. This contention is equally without substance inasmuch as there is no bar under Article 193 of the Constitution for elevation of women as Judges. The women, if otherwise qualified, are at par with men to be appointed for such offices. Nothing has been shown to us from Holy Qur'an or Sayings of Holy Prophet (peace be upon Him) that women cannot become Judges merely on ground of their sex. The position is, rather, otherwise. The State Policy as enshrined in Article 34 of the Constitution is that:-- "Full participation of women in national life.--Steps shall be taken to ensure full participation of women in all spheres of national life."
' All are equal before law and the Constitution and that being so, women who are more than half of the 'population of the country cannot be deprived of their rights guaranteed to them by the Holy Qur'an and the Constitution. Women, if properly educated and trained would, certainly become excellent Judges to administer justice even-handedly. They cannot, therefore, be discriminated on the basis .Of sex alone. No such precedent or violation of Queanic Injunctions could be quoted by the learned counsel in the matter of such appointments: Another argument was that women are rated as weaker sex and that evidence of two women is equal to one man. This provision pertains to evaluation of evidence and it cannot be read to mean as automatic disqualification for women to hold public offices. This question amongst others is settled once for all by a judgment reported as Ansar Burney v. Federation of Pakistan and others (PLD 1983 FSC 73). The relevant observations in the judgment are as follows:-- "There are certain injunctions in the Holy Qur'an which like the other injunctions about good conduct, discharge of duties, reward and punishment, are common to men and women. These Injunctions are regarding the duty of all Muslims to be just and to do justice. Thus in Q.4:58 it is said inter alia that: `Lo! Allah commandeth you that ye restore deposits to their owners, and if ye judge between mankind, that ye judge justly.'
' The other verse is Q.5:42: `If thou judgest, judge between them with equity.'
' In 0.57:25: `We verily sent Our messenger with clear proofs that mankind may remain steadfast on justice' or as Arberry says 'may uphold justice'. Pickthall translates the words {{URDU TEXT}} in this verse as "so that mankind may observe the right measure" but the translation does not correctly indicate the sense in which the above words are used. Arberry has correctly translated it as "so that men (people) might uphold justice".
80. The words ({{URDU TEXT}} (Adl) or {{URDU TEXT}} (Qist), no doubt, are used in a much wider sense and each Muslim whether male or female is bound to be just and equitable in his dealings with his spouse, parents, children, neighbourers, relatives, friends, fellow Muslims and all others. The concept of justice in deciding disputes between the parties or in deciding criminal cases is only a part of Adl or Qist. The first two Verses Q.4:58 and 0.5:42 clearly envisage the determination of disputes or litigation. There is no distinction in this connection between man and woman. In view of this; particularly in the absence of any prohibition in Qur'an or Hadith about the judgeship of a woman or any restriction limiting the function of deciding disputes to men only; the generality of these verses cannot be cut down. From whatever angle it may be looked there appears to be no merit in the objection raised by the petitioner against the appointment of woman to judicial offices:
81. The Qur'an allows a woman to earn money. In the Chapter relating to women (0.4:32) it is declared "Unto man a fortune from that which they have earned, and unto women a fortune from that which they have earned". "There are instances in which the woman took to some profession for earning. Hazrat Zainab tanned skins and thread beeds to sell to earn money for the poor. (Women in Muslim History by Charis Waddy, p.19).
83. A Booklet known as Universal Islamic Declaration of Human Rights has been published by Mr. Salem Azam, Secretary-General, Islamic Foundation, London. It gives a list of the human rights as recognized by Islam. The third right which deals with the equality before law, entitlement to equal opportunities and protection of the Law also provides firstly that all persons shall be entitled to equal wage for equal work and secondly that no person shall be denied the opportunity to work or be discriminated against in any manner or exposed to greater physical risk by reason of religious belief, colour, race, origin, sex or language. This rule supports the view taken by us.
84. Before finishing this it may be clarified that we have not been able to find any justification for the imposition of conditions on an appointment of a woman Qazi. In fact the opinion of Dr Tanzilur Rehman in his Book Islam Ka Nizam-e-Adalat, p.41 is also without any condition since he agrees with the view of Imam Abu Hanifa.
85. There is no merit in this petition which is dismissed."
' It will be useful to quote a para from "A Short History of the Saracens" by Ameer All at page 300 to throw light on the part played by women even in the past:- "Towards the end of Muktadir's reign, the actul Government was in the hands of his mother, a woman of character and ability. She issued edicts and ordinances under her own hand, and on Fridays, surrounded by the Kazis and nobles, held audiences to receive petition and complaints.
' At page 170 of Muhammadan Jurisprudence by Abdur Rahim (Edn. 1978), it is mentioned that "A Woman May Be A Jurist". Even, in the present times, women in the Muslim World are playing their roles in every sphere of life. To further emphasize the point, it may be mentioned that Mohtarama Benazir Bhutto is the Chairperson of P.P.P. And has been elected as the Prime Minister of Pakistan for the second time. Similarly, Begum Khalida Zia is the Prime Minister of Bangladesh. She heads a political party of her own. Opposition in Bangladesh is also run by Begum Hussaina Wajid. Similarly, Government of Turkey is run by a woman called Tan-so-Chillor, an economist and a known political figure. Miss Fatima Jinnah commonly known as "Madare-Millat" stood shoulder to shoulder with her great brother, Qaid-i-Azam Muhammad Ali Jinnah in his heroic struggle for the establishment of Pakistan. Begum Noor Jehan Panezai has held the high office of Chairperson of Senate of Pakistan for some time. In Islam, every man or a woman has to do his/her part whether it is war or peace towards the service of Islam and the country. If the argument is held to be tenable, it would ipso facto make 7 crores of population idle and useless citizens. It is a common knowledge that women work in the fields alongwith their men in the country side. In the above background, women, therefore. Cannot and should not be given less importance in a truly Islamic and democratic set-up. In the present day world, this argument has simply to be ignored being superfluous and contrary to reality of life.
The contention that the Acting Chief Justice was not competent to make recommendations for appointment of Judges is without substance inasmuch as under Article 260 of the Constitution, "Chief Justice" includes the Judge for the time being acting as Chief Justice of the Court. It may be observed here that his Lordship Mr. Justice Mian Mehboob Ahmad the then Chief Justice of this Court was transferred and appointed as Judge of Federal Shariat Court of Pakistan. In other words, the office of the Chief Justice of Lahore High Court was vacant and as such Mr. Justice Ch. Muhammad Ilyas, a Judge of the Supreme Court of Pakistan was requested by the President of Pakistan vide Article 196 of the Constitution, to act as Chief Justice of this Court. This controversy was exhaustively dealt with by a Division Bench of Sindh High Court in Iqbal Qadri v. Federation of Pakistan etc. Vide Writ Petition No,D-1545/94. The relevant part from the above judgment is as follows:-- "In view of the above observations it is clear that an Acting Chief Justice can be appointed when the office of the Chief Justice had fallen vacant and the power to appoint the Acting Chief Justice also vests with the competent authority which in the present case is the President of Pakistan as provided under Article 196 which reads as under:-- `196. At any time when --
(a) the office of Chief Justice of a High Court is vacant, or
(b) the Chief Justice of a High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint one of other Judges of the High Court, or may request one of the Judges of the Supreme Court, to act as Chief Justice.
' As already discussed in the case of Federation of Pakistan v. Saeed Ahmad Khan all the Government acts are supposed to have been done legally and validly and, therefore, the burden to show at least initially, that such order of action was mala fide or not warranted in law is on the person alleging the same. The superior Courts will not sit in judgment over the said case or orders as the Court of Appeals. Reference may be made to the case of Air Vice Marshall S.L. Chapra v.
Union of India and another, reported in 1993 Supp(4) Supreme Court Cases 441. The Supreme Court of India in a service matter had held that High Court or Supreme Court cannot act as Court of Appeal and they cannot encroach over the powers of the Selection Board by substituting its own view and opinion in the absence of oblique motive attributed to the Selection Board. Now in the present case it has already been discussed by us that there is no specific ingredient of mala fides pleaded in the present case."
' A similar view was also expressed by a learned Single Judge of this Court in Writ Petition No,743/94, M.D. Tahir, Advocate v. Federation of Pakistan etc. I respectfully follow the above rule in this case as well. This being so, the learned Acting Justice is the Chief Justice for all intents and purposes for the performance of the functions of this office including the appointment of new Judges. This will take me to another prayer in the second writ petition that some of the Judges may be declared to have been confirmed. It is true that the vacancies in the High Court are permanent in nature. The sanctioned strength of Lahore High Court, admittedly consists of fifty Judges. At present, the total strength of the Court is 43 and it is still short of seven Judges. The tenor of Article 197 is that in order to meet a particular situation, additional Judges can be appointed by the President of Pakistan. They may be appointed for a limited period, for a limited purpose as for example to clear the back-log. The latest figures show that there are more than sixty thousands cases still pending decision in the Lahore High Court.
Some of the cases are lying undecided for the last more than twenty years. It was, therefore, a valid demand of all and sundry in the country to fill the existing vacancies in the superior judiciary. It is needless to say that the sitting Judges are doing their utmost by hearing and deciding the old cases day in, day out since their elevation. Still the back-log would persist and could not be cleared because of chronic shortage even in the sanctioned strength of the Judges. This fact may be kept in view by the competent authorities while making such appointments in the Judiciary. The position in the cases in hand is different inasmuch as these appointments have been made against permanent vacancies. Ordinarily, these appointments should have been made permanent on the very first day keeping in view the nature of existing permanent vacancies and also keeping in view the pending load of judicial work. In such an alarming situation, it, therefore, may not be necessary for the Prime Minister or the President to wait for the expiry of one year term for which period these appointments have been made to confirm the said Judges. They may, if so desire, confirm these Judges in their own wisdom even before the expiry of their term of office. This may not be a new phenomenon because earlier too, under similar circumstances, a batch of six Additional Judges was confirmed without waiting for the expiry of term for which they were initially appointed. In this behalf, a reference may usefully be made to Notification No, F.8(1)/87-AII, dated 30th November, 1988. Reference may also be made to Notification No,F.8(1)/88-AII(A) dated Ist September, 1990, whereby 11 Additional Judges of this Court were appointed as permanent Judges much prior to the expiry of their period of service. If they decide to do so, in my view, their act shall be perfectly in accordance with the mandate of the Constitution and need of the day.
7. In the third and the last writ petition a declaration has been sought to the effect that five learned Additional Judges who were appointed in August 1992 for a period of 2 years have not been confirmed and three Hon'ble Judges appointed in the same batch have also not been appointed as permanent Judges and their period of service has been extended for a period of one year, although under the law all of the said Judges shall be deemed to have been permanently appointed from the date of their initial appointment. A bare perusal of Articles 193 and 197 of the Constitution of Islamic Republic of Pakistan, 1973 shows that even against a permanent vacancy, the President has the discretion to appoint Additional Judges for a specified period of time, on expiry whereof if the appointments are not made permanent or the said period is not extended, said appointments shall automatically lapse, and this is what has resulted in the case of the aforementioned five Hon'ble Additional Judges, whose period of service has not been extended.
Hence, so far as the said learned Judges are concerned, their case is no more a live issue.
' As regards the other three learned Additional Judges whose period of appointment has been extended for one year, can be made/appointed as permanent Judges by the President at any time with immediate effect, without waiting for the expiry of maximum period of extension in their service, legality, need and desirability of which exercise by the President has already been highlighted in the preceding paragraphs. In view of the above neither any case has been made out for interference in exercise of the Constitutional jurisdiction of this Court nor the petitioner has any actionable cause of action or locus standi to file this petition.
8. With the above observations and discussion, I do not find any substance in the above petitions which are hereby dismissed in limine. In view of dismissal of the writ petitions, C.M. No,2127 of 1994 does not arise and as such, it is also dismissed.
' These are the reasons in support of short order dated 4-9-1994 passed by this Court.
' During the hearing of these sensitive matters, the learned counsel for the petitioners addressed arguments in a very able, respectful and disciplined manner. I, therefore, express my heart-felt gratitude to all of them. I am, in particular impressed with the outstanding ability and preparations with which Mr. Abdul Sattar Najam, Advocate-General and Mr. Faqir Muhammad Khokhar, Deputy Advocate-General assisted the Court. Mr. Khokhar, as usual, cited apt and useful case-law on the controversy. I am thankful to both of them as well.