' The detailed judgment shall be considered as a part of my short order dated 13-7-1994, whereby the titled writ petition has been ordered to be dismissed in limine.
2. President of Pakistan, in exercise of his powers under the provisions of Article 203-C(2) of the Constitution of Islamic Republic of Pakistan, 1973, vide Notification No,F.10(7)/92-L.R, dated 15.41994-, appointed Mr. Justice Nasir Aslam Zahid, Chief Justice of the High Court of Sindh, as a Judge of the Federal Shariat Court, for a period of two years with immediate effect. Prior thereto his Lordship was appointed as ad hoc Judge of the Supreme Court of Pakistan, vide Notification No,F.6(2)-92-AII dated 14-4-1994, which notification was superseded vide notification dated 14-4-1994 referred to above. In pursuance of the aforementioned Notification of appointment as a Judge of the Federal.
Shariat Court, his Lordship relinquished his charge of office as the Chief Justice; took oath as a Judge of the Federal Shariat Court and is presently performing his functions as Judge of that Court, without voicing of any grievance or raising of any objection against the said appointment.
3. Mr. Tahir, an Advocate of this Court and that of the Supreme Court of Pakistan, has challenged the aforementioned appointment through this Constitutional petition as being illegal, un-Islamic, based upon male fides and hence without lawful authority.
4. Mr, Habib-Wahab-Alkhairi, Advocate, has appeared on behalf of the petitioner, whereas M/s. Faqir Muhammad Khokhar, learned Deputy Attorney-General and Mr. Mansoor Ahmad, learned Standing Counsel for the Federation of Pakistan, have appeared on behalf of the respondent as well as the Attorney-General of Pakistan.
5. In support of this petition, learned counsel for the petitioner has raised the following contentions:-
(1) That the appointment in question is violative of the concept of independence of judiciary as guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, as the appointment of a permanent Judge of the High Court as a Judge of the Federal Shariat Court, without his consent, will result in putting the learned Judge to a disadvantageous position as he will be emanable to transfer as a Judge of the Federal Shariat Court, to a post which may not involve exercise of judicial functions and may be of an inferior service status and, therefore, the impugned notification is illegal and is without lawful authority. In support of this contention, learned counsel has placed reliance on Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105).
(ii) That the appointment in question has been made by the respondent issuance of successive notifications in a hurried manner and is result displeasure of the respondent caused due to the speeches delivered the learned Judge wherein prolongation of the trial of Murtaza Bhutto's case as well as interference of the Government in the affairs of the judiciary had been criticised, therefore, the said appointment is not in bona fide exercise of powers but is based upon' mala fides, hence is without lawful authority. Reliance is placed on Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671).
(iii) That to transfer a permanent Judge of the High Court as a Judge of the Federal Shariat Court, without his consent, is violative of the Injunctions of Islam, therefore, as per provisions of Article 2A of the Constitution, appointment in question is patently illegal and hence is void, ab initio.
6. Elaborating his arguments, learned counsel for the petitioner has argued that provisions of Article 203 of the Constitution which were introduced by way of amendment therein, during the dictatorial rule, are violative of the basic structure of the Constitution and also to basic concept of independence of judiciary, as guaranteed by the Constitution as it originally stood, hence the same are ultra vires and as such exercise of powers under the said provision is without a lawful authority.
Learned counsel, however, has informed this Court that in order to challenge the legality and vires of the above-referred amendments in the Constitution, has been challenged by him as the petitioner in Re: Writ Petition No,869/91 at the Principal Seat of this Court at Lahore, which writ petition is pending adjudication in the said Court and has been referred to be heard by a Full Bench.
' Learned counsel has next contended that a Judge of the Federal Shariat Court under the Constitution can be transferred and posted elsewhere to perform the functions which may not be judicious in nature and post may also be of an inferior status, therefore, the appointment in question will amount to change of terms and conditions of service of his Lordship to his detriment and as such the impugned order is illegal and without lawful authority as the terms and conditions of service of a permanent Judge of the High Court cannot be changed by an executive order.
' On my query, learned counsel has, however, conceded that Federal Shariat Court has been constituted under Article 203 of the Constitution, according to which provision, Judges of the High Court including the Chief Justice can be appointed by the President of Pakistan as a Judge of the Federal Shariat Court and that such appointments are being made with effect from the date of inception of the Court. He has further conceded that Federal Shariat Court is a Court of higher padestal than that of the High Court and cannot be said to be a Court of inferior jurisdiction.
Learned counsel has further conceded that the provisions which authorize the President to transfer and post a Judge of the Federal Shariat Court to another office which may not entail performance of judicial functions, are still a part of the Constitution, having not been struck down so far and are applicable to all the Judges of the Federal Shariat Court.
' Learned counsel has next contended that the appointment in question has been made in an improper and mala fide manner as the respondent Government was unhappy with the learned Judge due to the delivery of the above-referred speeches and, therefore, the impugned order is based on mala fides and hence is without jurisdiction, and is liable to be struck down in exercise of Constitutional jurisdiction of this Court. Learned counsel has, however, informed the Court that the appointment in question has also been challenged by him as a petitioner before the Hon'ble Supreme Court of Pakistan in Re: Constitutional Petition No,29/94 almost on the grounds which are being urged before this Court. The learned counsel has placed on record a copy of the Paper Book of the aforementioned Constitutional petition in support of the above information.
7. As against above arguments addressed by the learned counsel for the petitioners, learned Law Officers, who have appeared at limine stage, have contended that the appointment in question has been made by the President of Pakistan, in a bona fide exercise of his powers under the provisions of Article 203-C(2) of the Constitution of Islamic Republic of Pakistan, 1973, therefore, it cannot be said that the appointment in question in any manner is illegal; that the Federal Shariat Court being a Court of higher padestal than the High Court, transfer of the learned Chief Justice as a Judge of the Federal Shariat Court for a fixed period of time, cannot be said to be an appointment to an inferior Court or detrimental to the terms and conditions of his Lordship's service; that there is absolutely nothing on the record to prove that the impugned order is based upon mala fides as the material placed on this Constitutional petition does not show that the President of Pakistan or the respondent-Government had taken ill of the speeches delivered by the learned Judge and that as a consequence thereof the impugned appointment was made. Mala fides have to be alleged with definiteness and proved with cogent material but in this case, there is nothing on the record on the basis whereof it could be said that the impugned order of appointment in question is based upon mala fides and, therefore, the plea raised by the petitioner being based upon surmises and conjectures, is of no avail to him and as such the writ petition is liable to be dismissed; that the appointment in question having been accepted as valid by the learned Judge, the petitioner is left with no actionable cause of action; and that the petition is nothing but a multiplication of other identical proceedings raising almost the same questions pending in the Lahore High Court, Lahore, Sindh High Court and Hon'ble Supreme Court of Pakistan, therefore, this pro bono publico petition is liable to be dismissed also on the ground of multiplicity of proceedings.
8. I have considered the arguments addressed by learned counsel for both sides and have perused the relevant provisions of the Constitution and law on the subject and have also gone through the record of this writ petition. Federal Shariat Court has been constituted under the provisions of Article 203 of the Constitution of Islamic Republic of Pakistan, 1973. Appointment of the Judges of the said Court is controlled by the provisions of clause (c) of the aforementioned Article which is reproduced as under:-- "203-C--(1) There shall be constituted for the purposes of this Chapter a Court to be called the Federal Shariat Court.
(2) The Court shall consist of not more than eight Muslim (Judges) including the (Chief Justice) to be appointed by the President.
(3) The Chief Justice shall be a person who is, or has been, or is qualified to be, a Judge of the Supreme Court or who is or has been a permanent Judge of a High Court.
(3-A) Of the Judges, not nore than four shall be persons each one of whom is, or has been, or qualified to be, a Judge of a Haji Court and not more than three shall be Ulema who are well- versed in Islamic law).
(4) The (Chief Justice) and a (Judge) shall hold office for a period not exceeding three years, but may be appointed for such further term or terms as the President may determine: Provided that a Judge of a High Court shall not be appointed to be a (Judge) for a period exceeding (two years) except with his consent and (except where the Judge is himself the Chief Justice) after consultation by the President with the Chief Justice of the High Court.
(4-A) The (Chief Justice), if he is not a Judge of the Supreme Court, and a (Judge) who is not a Judge of a High Court, may, by writing under his hand addressed to the President, resign his office.
(4-B) The President may, at any time, by order in writing:--
(a) modify the term of appointment of a Judge;
(b) assign to a Judge any other office; and
(c) require Judge to perform such other functions as the President may deem fit; and pass such other order as he may consider appropriate.
Explanation.--In this clause and clause (4-C) 'Judge' includes Chief Justice.
(4-C) While he is performing the functions which he is required under clause (4B) to perform, or holding any other office assigned to him under that clause, a Judge shall be entitled to the same salary, allowances and privileges as are admissible to the Chief Justice or, as the case may be, Judge of the Court.
(5) A Judge of a High Court who does not accept appointment as a (Judge) shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.
(6) The principal seat of the Court shall be at Islamabad, but the Court may from time to time sit in such other places in Pakistan as the (Chief Justice) may, with the approval of the President, appoint.
(7) Before entering upon office, the (Chief Justice) and a (Judge) shall make before the President or a person nominated by him oath in the form set out in the Third Schedule.
(8) At any time when the (Chief Justice) or a (Judge) is absent or is unable to perform the functions of his office, the President shall appoint another person qualified for the purpose to act as (Chief Justice) or, as the case may be (Judge).
(9) A (Chief Justice) who is not a Judge of the Supreme Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of the Supreme Court and a (Judge) who is not a Judge of a High Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of a High Court.
(4-B) The President may, at any time, by order in writing,--
(a) modify the terms of appointment of a Judge;
(b) assign to a Judge any other office; and
(c) require a Judge to perform such other functions as the President may deem fit; and pass such other order as he may consider appropriate.
Explanation.--In this clause and clause (4-C), "Judge" includes Chief Justice.
(4-C) While he is performing the functions which he is required under clause (4-B) to perform, or holding any other office assigned to him under that clause, a Judge shall be entitled to the same salary, allowances and privileges as are admissible to the Chief Justice or, as the case may be, Judge of the Court)."
A perusal of the abovementioned provision will clearly show that a Judge of the High Court including a Chief Justice can be appointed by the President as a Judge of the Federal Shariat Court. Therefore, President of Pakistan has the jurisdiction to appoint a Chief Justice of a High Court as a Judge of the Federal Shariat Court for a fixed period of time and that a Judge of the Federal Shariat Court can be assigned any other office and can be required to perform such other functions as the President may deem fit on his existing terms and conditions regarding salary etc. Therefore, transfer of a Judge of a Federal Shariat Court to some other office or post is an incidence of his service as a Judge of that Court, as provided by the Constitution itself. As per provisions of Article 203-G, no Court including the Supreme Court and the High Court has jurisdiction to entertain any proceedings or exercise any power or jurisdiction in the subject which is within the jurisdiction of the Federal Shariat Court. A judgment rendered by the Federal Shariat Court, affirmed by the Appellate Shariat Bench of the Supreme Court of Pakistan, is binding even on the Supreme Court whereas a judgment delivered by the Federal Shariat Court is binding on the High Courts and all other Subordinate Courts, therefore, it can safely be concluded that Federal Shariat Court is definitely a Court of higher padestal than that of the High Court and, therefore, it cannot be said that a Judge of the High Court when appointed as a Judge of the Federal Shariat Court is posted as a Judge of a Court of inferior status. Merely because, while serving as a Judge of the Federal Shariat Court, a provision has been made in the Constitution for transfer of the said Judge to another post which may not involve performance of judicial functions, being a provision of the Constitution itself, so long as the same is a part of the Constitution, it cannot be said that due to the said provision, the posting of a permanent Judge of the High Court as a Judge of the Federal Shariat Court would amount to the change of terms and conditions of service of the Judge to his detriment. In case of Hakim Khan and 3 others V. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595), their Lordships of the Supreme Court have held that various provisions of the Constitution have to be read and interpreted harmoniously not in the manner destructive to each other. At pages 616 to 617 of the aforementioned report their Lordships have held as follows:-- "Now the well-established rule of interpretation is that a Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision. And where any apparent repugnancy appears to exist between its different provisions, the Court should harmonise them, if possible (See Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC (Pak.) 219 at p.235)."
' In the same report while considering the effect and scope of the provision 2A of the Constitution of Islamic Republic of Pakistan, 1973 at page 619 it has been held as under:-- "This submission undoubtedly has force. In an Islamic Polity all the three limbs of the State namely Executive, Legislature and Judiciary can exercise the delegated functions of the diving sovereignty within their respective spheres and the reference in the Holy Qur'an to the obedience of {{URDU TEXT}} ( /4 lit (3,.1 1 ) is equally applicable to the members of the judiciary. In this connection, it is pertinent to note that Maulana Maududi in his work entitled Tafheemul Qur'an observes; the original is in Urdu and the English rendering thereof below is somewhat as under:- "The concept of `Oolilamr {{URDU TEXT}} (/' Li) a, I ) comprises of persons who are in charge of the collective affairs of the Muslims. They may be Ulema offering guidance on religious matters, or the political leaders, the civil servants running the administration or Judges deciding disputes in Courts etc..." Interpreting the same verse Maulana-Amin Ahsan Islahi in Tadabbar e-Qur'an {{URDU TEXT}} ( J,3/A./ ) observed: "Since at the time of Revelation of this verse there was no question of any State or Caliphate, the expression `Oolilamr referred to in that context to the prominent leaders of the Muslims in various fields."
' This shows that the judiciary too can exercise the delegated divine sovereignty: "But here we are concerned with the mode and manner of its exercise as visualised in the Objectives Resolution. It has already been pointed out that immediately upon the adoption of the Objectives Resolution a Basic Principles Committee was set up for framing the provisions of the Constitution in conformity with the principles enunciated in the Objectives Resolution. These provisions were eventually to be adopted by the Constituent Assembly after examining that they indeed complied with the principles enunciated in the Objectives Resolution. The Courts could neither participate in this process nor had any role therein.
' The role of the Objectives Resolution, accordingly in my humble view, notwithstanding the insertion of Article 2A in the Constitution (Whereby the said Objectives Resolution has been made a substantive part thereof) has not been fundamentally transformed from the role envisaged for it at the outset; namely that it should serve as beacon light for the Constitution-makers and guide them to formulate such provisions for the Constitution which reflect ideals and the objectives set forth therein. Thus, whereas after the adoption of the Objectives Resolution on 12th March, 1949, the Constitution-makers were expected to draft such provisions of the Constitution which were to conform to its directives and the ideals enunciated by them in the Objectives Resolution and in case of any deviation from these directives, while drafting the proposed provisions for the Constitution the Constituent Assembly, before whom these draft provisions were to be placed, would take the necessary remedial steps itself to ensure compliance with the principles laid down in the Objectives Resolution. However, when a Constitution already stands framed (in 1973) by the National Assembly of Pakistan exercising plenary powers in this behalf wherein detailed provisions in respect of all matters referred to in the Objectives Resolution have already been made and Article 2A was made a mandatory part thereof much later i,e, after 1985 accordingly now when a question arises whether any of the provisions of the 1973 Constitution exceeds in any particular respect, the limits prescribed by Allah Almighty (within which His people alone can act) and some inconsistency is shown to exist between the existing provision of the Constitution and the limits to which the man-made law can extend; this inconsistency will be resolved in the same manner as was originally envisaged by the authors and movers of the Objectives Resolution namely by the National Assembly itself. In practical terms, this implies in the changed context, that the impugned provision of the Constitution shall be corrected by suitably amending it through the amendment process laid down in the Constitution itself."
' Similarly, in case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) at page 601 of the report it has been held as under:-- "The other observation with which I want to preface what follows in the judgment are three rules of interpretation peculiar to the Constitution distinguishing it from every other instrument. These principles stand recognised in all countries having written Constitutions. The first principle of interpretation was expressed tersely in Paul M. Sweezy v. State of New Hampshire by Louis C.
Wyman, Attorney-General (354 US 234 =1 L ed 2d 1311=77 S Ct 1203) in the following words:-- `While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning. See Hurtado v. California (110 US 516, 528, 529=28 L ed 232, 236=4 S Ct 111, 292; M'Culloch v. Maryland (US)
4 Wheat 316, 4 L ed 579).
' The second principle which need not be supported by any authority is that the entire Constitution has to be read as an integrated whole, and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.
' The third principle equally entrenched is that the words of the written Constitution prevail over all unwritten Conventions, Precedents and Practices."
Following the principle of consistency and harmony while determining the vires, regality and effect of various provisions of the Constitution, all the provisions have to be read together in juxta position to each other. Therefore, When examining the legality of appointment in question on the touchstone of the existing Constitutional provisions, it cannot be said that the same is not in accord with the said provisions.
9. As regards the arguments of the learned counsel for the petitioner to the effect that the appointment in question is a result of speeches delivered by the learned Judge which had resulted in causing of displeasure to the. Government, there is no cavil with the proposition as laid down in case of "Abdur Rauf and others" supra, that grant of powers by the Legislature to take action or to pass an order does not contemplate mala fide exercise of the power and if the power is exercised in a male fide manner, then the order is a fraud on the Statute and, therefore, is without jurisdiction, but at the same time it is also a well-established legal proposition that mala fides has to be specifically pleaded and in support thereof legal proof has to be adduced to establish the same as no finding of male fides can be recorded merely on the basis of surmises, assumptions, assertions and bare allegations as held in the following cases:--
(1) Water and Power Development Authority, WAPDA House, Lahore v. Amjad Hidayat Butt (1986 SCM R 582).
(2) Fauji Foundation and another v. Shamim-ur-Rehman (PLD 1983 SC 457), and
(3) Husnain Brothers v. Pakistan National Shipping Corporation, Karachi (1986 CLC 2898).
Examined the case in hand in the light of the legal principles laid down in the judgments referred to above, I am of the view that the petitioner has failed to place on record any cogent material on the basis whereof it could be said that the impugned order of appointment is based on male fides.
Although press reports can be taken note of while deciding the question of fact in view of law declared in the case of "Mian Muhammad Nawaz Sharif' supra, yet the opinions or views expressed in a newspaper cannot be equated with a piece of evidence which can be used against a party while rendering an adverse decision in a lis, except the views and opinions expressed in the newspapers, the petitioner has not placed any other material on the record to show that the impugned order has been passed for an ulterior motive and hence is based upon mala fides and that it has not been passed in bona fide exercise of powers, therefore, the allegations of mala fides being based upon surmises, conjectures and suppositions do not establish that the impugned order has been passed in a mala fide exercise of power, amenable to be interfered with in exercise of powers of a judicial review of this Court. Even otherwise, orders passed and actions taken by the public functionaries deserve due regard by the Court and every possible explanation for their validity has to be explored in view of the law declared in the following cases:--
(1) Government of Sindh through Chief Secretary and others v. Khalil Ahmad and others (1994 SCM R 782 at page 790).
(2) The Chairman, East Pakistan Railways v. Abdul Majeed Sardar (PLD 1966 SC 725), and
(3) Lahore Improvement Trust v. The Custodian, Evacuee Property and others (PLD 1971 SC 811).
Besides the above findings, as the appointment in question has been accepted by the learned Judge without voicing of any grievance or raising of any objection thereagainst, it cannot be said that the petitioner is possessed of an actionable existing cause of action to challenge the said appointment. In view of the above, it is held that the impugned order of appointment/notification has been passed/issued by the Competent Authority in accord with the provisions of Constitution of Islamic Republic of Pakistan, 1973 and is not tainted with mala fides.
10. As regards the argument of the learned counsel for the petitioner that the impugned order having been passed under the provisions of Article 203 of the Constitution which provisions have been made as a part of the Constitution by way of amendment, which amendment, according to the learned counsel is unauthorised and invalid, hence the said order amounts to interference in independence of judiciary and is also un-Islamic, suffice it to say that decision of aforementioned issues, in the light of the findings rendered by this Court that the impugned order of appointment is in accord with existing provisions of the Constitution and is not tainted with mala fides, has become more of an acedemic character and hence discussion/decision thereon is neither appropriate nor needed to be taken in this Constitutional petition as admittedly the same issues are subject-matter of decision in the following cases i,e, before a Full Bench of this Court at Lahore in re: Writ Petition No, 869/91 (RWP); before Hon'ble Supreme Court of Pakistan in re: Constitutional Petition No,29/94 as well as Civil Appeals Nos. 397-K and 399-K of 1990 and also in Writ Petition No, 1545/94 pending in the High Court of Sindh at Karachi, and the petitioner has an efficacious remedy of joining of those proceedings and assist the said Courts to get the resolution of the abovereferred issues.
' Resultantly as no case has been made out for interference with the impugned order/notification, this writ petition is hence dismissed in limine.