JUSTICE MOHSIN AKHTAR KAYANI, JUDGE Versus The PRESIDENT OF PAKISTAN, PAK SECRETARIAT, ISLAMABAD

ORDER

NAEEM AKHTER AFGHAN, J.--- For the reasons to be recorded later on, all the Constitution Petitions are accepted. The impugned Notification No.F.10(2)/2024-A.II dated 1st February 2025 issued by the Secretary, Ministry of Law and Justice, Government of Pakistan, whereby in exercise of powers conferred by Clause (1) of Article 200 of the Constitution of Islamic Republic of Pakistan, 1973 ( The Constitution ), the President of the Islamic Republic of Pakistan ( The President ) has transferred Mr. Justice Sardar Muhammad Sarfraz Dogar, Judge, Lahore High Court ( LHC ), Mr. Justice Khadim Hussain Soomro, Judge, High Court of Sindh ( SHC ) and Mr. Justice Muhammad Asif, Additional Judge, High Court of Balochistan ( BHC ) to Islamabad High Court ( IHC ), is declared null, void and of no legal effect on the following amongst other grounds:

1. Clause (2) of Article 200 of the Constitution is subservient to Clause (1) of Article 200 of the Constitution and both are interconnected;

2. According to the Doctrine of Harmonious Construction, while interpreting Clause (1) and Clause (2) of Article 200 of the Constitution, both the clauses have to be harmonized and, being consistent with each other, have to be read in conjunction with each other for giving effect to both without creating conflict or absurdity;

3. When Clause (1) and Clause (2) of Article 200 of the Constitution are read in conjunction with each other, it provide that when, in exercise of his discretion, the President transfers a Judge of a High Court from one High Court to another High Court, during the period for which he serves as a Judge of the High Court to which he is transferred, the Judge so transferred is entitled to such allowances and privileges, in addition to his salary, as determined by the President;

(Emphasis laid)

4. During arguments, the learned Attorney General for Pakistan conceded and categorically conveyed to the Court on behalf of the Federation of Pakistan that the three Judges have been transferred by the President to the IHC vide impugned notification on permanent basis. Clause (1) and Clause (2) of Article 200, read in conjunction with each other, do not provide for permanent transfer of a Judge of a High Court from one High Court to another High Court and it provide for transfer of a Judge of a High Court from one High Court to another High Court for a period i.e. on temporary basis;

(Emphasis laid)

5. The permanent transfer of three Judges to IHC has been made by the President in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution.

6. It has offended Article 175A of the Constitution and has made the same redundant;

7. The process for permanent transfer of three Judges to IHC is suffering from concealment of relevant and material facts from the transferee Judges, from the Chief Justices of the IHC, LHC, SHC, BHC and from the Hon'ble Chief Justice of Pakistan ( CJP );

8. The process for permanent transfer of three Judges to IHC is also lacking meaningful, purposive and consensus oriented consultation with the Chief Justices of IHC, LHC, SHC, BHC and Hon'ble CJP on all the relevant issues;

9. The process for permanent transfer of three Judges to IHC has been completed in an unnecessary haste;

10. It is suffering from mala fide in facts as well as mala fide in law;

11. It has not been made by the President in the public interest;

12. While transferring the three Judges to IHC on permanent basis, the President has failed to apply his independent mind with objective opinion;

13. The object of proportionate representation of all the Provinces in IHC could have conveniently been achieved by making fresh appointment of Judges from the Provinces by the Judicial Commission of Pakistan ( JCP ) under Article 175A of the Constitution as Rule 6 of the Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024 binds/mandates the Members of the JCP to ensure proper diversity in terms of region as well as gender and religion, subject to the prescribed criteria;

14. It is violative of Article 2A, Article 4 and Article 25 of the Constitution and it has undermined the independence of judiciary, due process and principle of equality;

15. The permanent transfer of three Judges to IHC from LHC, SHC and BHC by the President has caused ripple in the comity of Judges.

16. According to the settled principles, if a case can be decided on other or narrower grounds, the court will abstain from deciding a larger constitutional question than is necessary for the determination of the case 1 . Since it has already been held that the permanent transfer of three Judges to IHC from LHC, SHC and BHC cannot be made by the President in exercise of powers under Clause (1) read with Clause (2) of Article 200 of the Constitution, therefore there is no need to dilate upon the issues of taking fresh Oath by the transferee Judges or their seniority. The said issues will be dilated upon/dealt with in an appropriate case;

17. Learned counsel for the petitioners contended that six sitting Judges of IHC wrote letter dated 25th March, 2024 to the then Hon'ble CJP/Chairman JCP, Senior Puisne Judge, Supreme Court of Pakistan/Member JCP and three other Members of JCP with complaints of interference in judicial functions and/or intimidation of Judges of IHC by the Intelligence Agencies/ operatives of the Inter-Services Intelligence ( ISI ); the issue was taken up in full court meeting of the Supreme Court as well as on the judicial side and it had triggered the process for transfer of three Judges to IHC from LHC, SHC and BHC.

The above contention raised by learned counsel for the petitioners cannot be believed as the Intelligence Agencies, including ISI, have no role under the Constitution for appointment or transfer of Judges. Being subordinate to the Executive, the Intelligence Agencies, including ISI, cannot override the Executive, the Judiciary, the Constitutional bodies and the Constitutional office holders. If, for the sake of argument, the contention of learned counsel for the petitioners is believed, it portrays: and

Sd/-

(Justice Naeem Akhter Afghan)

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(Justice Shakeel Ahmad)

ORDER OF THE COURT

By majority of 3 to 2 (comprising Justice Muhammad Ali Mazhar, Justice Shahid Bilal Hassan, and Justice Salahuddin Panhwar), all the Constitution Petitions are disposed of along with Misc. Applications and the matter is partially remanded to the President of Pakistan in terms of the Short Order dated 19.06.2025. Whereas, Justice Naeem Akhter Afghan and Justice Shakeel Ahmad, vide their own short order dated 19.06.2025 allowed the Constitution Petitions and set aside the impugned Notification No.F. 10(2)/2024-A.II, dated 0 1.02 2025.

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Judge

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Judge Judge

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MWA/J-4/SC Order accordingly.

1 "Treatise on constitutional limitations" by Cooley pages 159 to 186

"Constitutional Law of India" Vol-I by H.M. Seervai, pages 260 to 262

"Fundamental Law of Pakistan" by the late Mr. A.K. Brohi, pages 562 to 592

"Judicial Review of Public Actions" Vol-I by Mr. Justice Fazal Karim, pages 488 to 492

"Lahore Development Authority v. Imrana Tiwana (2015 SCMR 1739)"