1995 PLP 752 (CLC)

(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 Sharlat 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 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 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 observed: "Since at the time of Revelation of this verse there was no question of My 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 m 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 "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 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; MCulloch 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, legality 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 mala 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 mala 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 SCMR 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 mala 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 (1) Government of Sindh through Chief Secretary and others v. Khalil Ahmad and other's (1994 SCMR 782 at page 790). East Pakistan Railways v. Abdul Majeed Sardar (PLD (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 there against, 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

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 malgi rides, 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. A.A./M‑1912/L Petition dismissed.