2023 PLP (C (PLC(CS)N)

SYED ARSHAD HUSSAIN SHAH, CJ.

This Court seized with the matter on original side on the application submitted by legal heirs of Late Judge of this Court, Mr. Shahbaz Khan through the present petitioner. This application is with regard to grant of pensionary benefits to legal heirs of late Judge, Mr. Shahbaz Khan. Upon registration of case, notices were issued to the authorities of the concerned departments and proceedings took place from 27.09.2018. Judgment to the extent of grant of 10 million assistance package was passed and in consequent thereto, an amount of Rs. 10 million was paid to legal heirs of the late Judge as assistance package. For grant of rest of the relief i.e., pensionary benefits, authorities of concerned Ministries sitting in Islamabad were directed to furnish view/comments in the light of Order dated 07.07.2018 passed by learned Lahore High Court in the case of Justice (Rtd.) Khan Riaz-ud-Din Ahmed and 7 others v. The Accountant General Punjab and 2 others in Writ Petition No. 115014 of 2017 and Writ Petition No. 105298 of 2017 which stood upheld by the Hon'ble Supreme Court of Pakistan vide Order dated 27.03.2019 passed in the case titled "Government of the Punjab through Secretary Finance Department, Lahore and others v. Justice (Rtd.) Rauf Ahmed Sheikh and others (Civil Appeals Nos. 140-L to 142-L/2018". However, till the last date of hearing, view/comments from the Ministry of Law Justice, Government of Pakistan were not submitted before this Court. Therefore, we are left with no other option but to proceed with matter on the basis of available record and to pass this Order regarding grant of rest of relief sought for by legal heirs of late Judge, Mr. Shahbaz Khan i.e. pensionary benefits.

2. Precisely, facts of case in hand are that Mr. Shahbaz Khan was elevated to Bench as Judge in the Supreme Appellate Court, Gilgit-Baltistan vide Notification No.C-4(2)/2011 GB Council dated 15th March, 2016 issued by Chairman Gilgit-Baltistan Council under Article 60(5) of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009. For ease of reference, the said notification is reproduced herein below: "GILGIT-BALTISTAN COUNCIL SECRETARIAT, 2ND FLOOR "B" BLOCK BENEVOLENT FUND BUILDING ZERO POINT, ISLAMABAD Islamabad, the 15th March, 2016 NOTIFICATION No. C-4(2)/20I1 GB Council: - In exercise of the powers conferred under Article 60(5) of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009, the Chairman Gilgit-Baltistan Council has been pleased to appoint Mr. Shahbaz Khan, Advocate as Judge Supreme Appellate Court Gilgit-Baltistan with effect from the date of he enters upon his office. The term of the office shall be governed under Article 60(8) of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009. -sd- (ONSIA ZAFAR) Deputy Secretary (Admin)" The relevant Articles governing term of the office and other privileges applicable to Chief Judge and Judges of Supreme Appellate Court, Gilgit-Baltistan under the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 are reproduced as under: PART. XI-THE JUDICATURE Article

60. Gilgit-Baltistan Supreme Appellate Court. - (1) There shall be constituted a Gilgit-Baltistan Supreme Appellate Court, referred to as the Supreme Appellate Court to be the highest Court of Appeal. (2) (3) The Supreme Appellate Court shall consist of a Chief Judge to be known as Chief Judge of Gilgit-Baltistan and two other Judges: Provided that the Government of Pakistan may from time to time increase the number of judges. (4) (5) The Chief Judge of Supreme Appellate Court shall be appointed by the Chairman of the Council on the advice of the Governor and other Judges shall be appointed by the Chairman on the advice of Governor after seeking views of the Chief Judge. (6) (7) (8) The Chief Judge and judges of the Supreme Appellate Court of Gilgit-Baltistan shall be appointed for a term not exceeding three years and may be appointed for such further term as the Government of Pakistan may determine, unless they sooner resign or are removed from office in accordance with law. (9) (10) The remuneration and other terms and conditions of service of the Chief Judge and of a Judge of the Gilgit-Baltistan Supreme Appellate Court shall be such as are admissible to the Chief Justice of Pakistan and Judges of the Supreme Court of Pakistan. The term 'Remuneration' was defined in Article 2(n) of the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 which is reproduced below; [2(n) "remuneration" included salary and pension] While serving as Judge of this Court, he departed to his final abode on 20.09.2016 leaving behind a Widow, four daughters and one son, out of whom son and two daughters are minors. On the analogy of grant of pensionary benefits to retired judges of superior judiciary of Pakistan, legal heirs of late Judge, Mr. Shahbaz Khan have approached this Court through Supreme Appellate Court Bar Association, Gilgit-Baltistan for grant of pensionary benefits.

3. Mr. Muhammad Hussain Shehzad Senior Advocate and President SAC Bar Association GB, Mr. Shaukat Ali, Sr. Advocate Ex. President SAC Bar GB and Mr. Asadullah Khan Sr. Advocate representing the legal heirs of late Judge Mr. Shahbaz Khan argued that since total length of appointment of Judges of Supreme Appellate Court Gilgit-Baltistan is too short as compared to the Hon'ble Judges of Supreme Court of Pakistan, hence minimum length of service for pension purposes for the judges of this court be reckoned proportionately. By applying minimum length of service of Supreme Court Judges to the judges of this court for the purpose of pension would be discriminatory as the minimum length of service required for pension of a judge of Supreme Court is three years whereas total length of service of a judge in this court is three years. And if government insends to apply the same minimum length of service as that of the Judges of Supreme Court of Pakistan to judges of this court, it would not be fair and would be discriminatory and result in depriving the legal heirs of late Judge, Mr. Shahbaz Khan from the pensionary benefits. In addition to this, learned counsel maintained that on the basis of the length of service laid down and applicable to Hon'ble Judges of Supreme Court of Pakistan, if the government denies pensionary benefits to legal heirs of late Judge, Mr. Shahbaz Khan, it will create a sense of deprivation amongst the general public of Gilgit-Baltistan inasmuch the same would-be violation of fundamental rights of legal heirs of late Judge as well as people of Gilgit-Baltistan. It was next argued by learned counsel that analogy laid down by learned Lahore High Court and the Hon'ble Supreme Court of Pakistan in the Orders passed in above referred cases makes the case of late Justice Shahbaz Khan a fit case for pensionary benefits.

4. We have heard arguments of learned counsel for parties and have gone through record as well as relevant law and precedents on the subject.

5. First, we are to decide the jurisdiction of this court on original side. Under Article 61 of the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 we can assume this jurisdiction if a question of general public importance with reference to the enforcement of any of the fundamental rights conferred by Part II of the Order, 2009 is involved. Though access to justice nor independent judiciary is mentioned in Part II as a fundamental right. But the Hon'ble Supreme Court in 1999 had conferred this right on people of Gilgit-Baltistan. Access to justice through an independent judiciary is a fundamental right of people of Gilgit-Baltistan (Para 28 of Al jihad Trust case reported as 1999 SCMR 1379). Similarly Access to justice through an independent judiciary is not mentioned in Chapter of Fundamental Rights of the Constitution of Pakistan but the same principle of right of "access to justice to all" is held fundamental right for people of Pakistan by Hon'ble Supreme Court of Pakistan in Mehram Ali's case reported as PLD 1998 SC 1445. The relevant para is reproduced below " "11 (vi) That the right of "access to justice to all "is a fundamental right, which cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Hon'ble Supreme Court of Pakistan in famous case of District Bar Association Rawalpindi (PLD 2015 SC 401) held that independence of judiciary is one of the fundamental features of the Constitution of Pakistan which basic feature is superior to even fundamental rights guaranteed under the Constitution and the vires of Constitution (including fundamental rights) can be examined by the Supreme Court on salient features theory. It is also now an accepted jurisprudence that remuneration, terms and conditions and security of tenure of judges is part and parcel of independent judiciary. Reference may be had to a judgment of this court in Suo Motu Case entitled "Up- Gradation of Judicial Officers" reported as 2010 GBLR

160. Relevant sub-para of paragraph 6 at page 178 is reproduced below "The above rule ipso-facto will be applicable to the judiciary of Gilgit-Baltistan without any exception. The concept of independence of judiciary is not confined only to the person of judicial officers rather judicial independence mostly depends on administrative and financial independence. The interference of executive in the affairs of judiciary with respect to the prospect of their service and terms and conditions of service directly or indirectly may affect the independence of judiciary. The better service status with better terms and conditions may ensure the independence of judicial officers to the expectation of a common man" The Hon'ble Supreme Court of Pakistan in Mehram Ali's Case reported as PLD 1998 SC 1445 held that terms and conditions of judges are part of independent judiciary. Relevant para 11 of this said judgment is reproduced below for ready reference: "

11. From the above case law the following legal position obtaining in Pakistan emerges:- (i) (ii)

(iii)

(iv)

(v)

(vi)-- (vii) That independence of judiciary is inextricably linked and connected with the process of appointment of judges and the security of their tenure and other terms and conditions" In a recent judgment of Hon'ble Supreme Court of Pakistan in case entitled "Justice Qazi Faez Isa and others v. The President of Pakistan and others" reported as PLD 2021 SC 1 the jurisdiction is assumed under original jurisdiction by Hon'ble Supreme Court in a case involving individual accountability of judge by holding that even accountability of a judge is matter of public importance involving fundamental right of independent judiciary by relying on an earlier judgment of Supreme Court in case of Muhammad Aslam v. Federation of Pakistan (2014 SCMR 1289). The relevant para in the said case of Muhammad Aslam has been reproduced in para 2 of Judgment of Justice Qazi Faez Isa which is again reproduced here "Judicial independence both of an individual judge and of the judiciary as an institution is essential so that those who bring their causes/cases before the judges and public in general have confidence that their cases would be decided justly and in accordance with law. Judicial independence is one of the foundational values of the Constitution of Islamic Republic of Pakistan which is based on tracheotomy of powers in which the functions of each organ of the State have been constitutionally delineated

." This judgment further goes on to hold that it is in this background that Justice Qazi Faez Isa has filed the petition under original jurisdiction seeking to protect the basic fundamental right of the Pakistani people from unlawful interference by the Executive authorities. The petitioner being representative body of Bar has touched this aspect of the matter in present case and we fully agree that access to justice through an independent judiciary is a fundamental right of people of GB and is of general public importance. This court therefore, has the jurisdiction under Article 61 of the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 to assume jurisdiction.

6. It is an admitted position that the Hon'ble Late Justice Shahbaz Khan was appointed under Article 60 of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 as judge of Supreme Appellate Court Gilgit-Baltistan. The entitlement for pension of the Judges of this court under Article 60 of the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 has elaborately been discussed by a judgment of this court in case entitled "Pension of Ex Chief Judge Supreme Appellate Court" reported as 2011 GBLR

388. In the said judgment it has been discussed that in a full court meeting of this court dated 7-7-2010 this court had issued a formal notification incorporating President Order No 2 of 1997 with additional notes and explanation attached therewith. The said Notification has been made part of the said judgment. In the said judgment in para. 7 it has been clearly laid down that notwithstanding the appointment of the Chief Judge and Judge of Supreme Appellate Court for a fixed term of three years, under Article 60(8) of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009, they would be entitled to the pension and other retirement facilities/ benefits in terms of Paras 15 to 18 read with Para 25 of President Order No. 2 of 1997 Supreme Court Judges and (Leave, Pension, and Privileges) Order, 1997 in accordance with the judgment of Supreme Court of Pakistan in "Accountant General Sindh v. Ahmed Ali U. Qureshi," reported as PLD 2008 SC page

522. The relevant portion of same para 7 of 2011 GBLR 388 is reproduced below. " "

7. Notwithstanding the appointment of the Chief Judge and Judges of Supreme Appellate Court for a fixed term of three years, under Article 60(8) of Governance Order, 2009, they would be entitled to the pension and other retirement facilities/benefits in terms of paras 15 to 18 read with para 25 of President Order No. 2 of 1997, Supreme Court Judges (Leave, Pension and Privileges) Order, 1997 in accordance with the judgment of Supreme Court of Pakistan in Accountant General Sindh and others v. MU Ahmed Ali, PLD 2008 page 522 wherein it was held as under: "

29. The matter relating to the grant of pension to retired judges of High Courts irrespective of their length of service as such Judge, at one stage was seriously considered by the Federal Government but it could not be materialized for the reason of departmental interpretation of Fifth Schedule that a retired Judge of the High Court who has not put in five years minimum service in terms of paragraph 3 of the Schedule, was not entitled to the pensionary benefits whereas the plain reading of paragraph 2 in the Fifth Schedule referred to above, would show that every Judge of a High Court shall be entitled to a pension besides other rights and privileges as referred to in the above paragraph, as may be determined by the President. This paragraph further provides that until such rights and privileges are so determined, a Judge shall be entitled to such privileges and rights including a right to receive pension to which a Judge was entitled immediately before the commencing day. There is no ambiguity in paragraphs 2 and 3 of Fifth Schedule because paragraph 3 provides for a minimum and a maximum pension payable to a Judge of a High Court who has not put in less than five years of service as such Judge whereas paragraph 2 deals with the entitlement of Judges. In short paragraph 3 identifies a particular class of Judges, with reference to length of service and nothing can be spelt out that paragraph 2 has no independent implication with reference to every Judge of a High Court. It is thus clear that the classification of Judges was made with reference to their length of service for the purpose of determination of their pension at different rates mentioned therein and not for the purpose of determination of their right of pension which is recognized under Article 205 of the Constitution. Conclusion

31. Before parting with this judgment, we deem it proper to point out that Chief Justice and Judges of Federal Shariat Court are also entitled to the grant of pension and pensionary benefits available to the retired Judges of the Supreme Court and High Courts under the Constitution. The appointment of Chief Justice and Judges of the Federal Shariat Court is made by the President under Article 203-C of the Constitution and the terms and conditions of Service of the Judges of the said Court are also determined by the President, therefore, notwithstanding the fixed tenure of the Chief Justice and Judges of the Federal Shariat Court, they are entitled to the terms and conditions of service and remuneration including pension and pensionary benefits at par to the Judges of Supreme Court and High Courts, by virtue of Article 203-C (9) of the Constitution which provides as under:--"

7. The judgment reported in PLD 2008 SC 522 had held that all judges of High Court were entitled for pension regardless of their length of service. That those judges who rendered not less than five years of service as judge had an edge over those putting less than five years of service as a minimum pension is fixed for them depending on length of service. According to this judgment judges retiring before rendering five years of service would get lesser pension than those rendering five years or more service. The judgment of this Court reported as 2011 GBLR 388 had already laid down that the same principle of pension calculated on the basis of length of service of the judges of High Court/Chief Court was applicable to Judges of this court appointed under Article 60 of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009. The judgment of this court was never set aside since 2010. The principle for judges of High Court as determined by judgment reported as PLD 2008 SC 522 was set aside for other provinces of Pakistan except GB as in GB the judgment of this Court is binding on all executive and judiciary. It was due to the judgment of this court in 2011 GBLR 388 that in Gilgit-Baltistan the retired judges of Chief Court have been receiving pension without any interruption though in rest of Pakistan it was interrupted due to a judgment of Hon'ble Supreme Court of Pakistan reported as PLD 2013 SC

829. Nevertheless, this principle of proportionate pension under new formula of yearly service in the light of CSR 474(b) was reinforced for judges of High Courts firstly by the judgment of Lahore High Court in case of "Justice (Rtd.) Khan Riaz-ud-Din Ahmed and 7 others v. The Accountant General Punjab and 2 others in Writ Petition No. 115014 of 2017 and Writ Petition No. 105298 of 2017" and upheld by Hon'ble Supreme Court of Pakistan in case "Government of the Punjab through Secretary Finance Department, Lahore and others v. Justice (Rtd.) Rauf Ahmed Sheikh and others (Civil Appeals Nos. 140-L to 142-L/2018)". After judgment of this Court reported as 2011 GBLR 388 the present case is the first one in which family pension of a judge of superior courts of Gilgit-Baltistan dying during service is being decided. Since late Judge died after rendering more than six months service we are of the view that this case should be dealt with under the formula as laid down in Justice (R) Sheikh Riaz ud Din Ahmed and 7 others finally upheld by the Hon'ble Supreme Court of Pakistan in case "Government of the Punjab v. Justice (Rtd) Rauf Ahmed Sheikh and others".

8. It is to be added that late Judge, Shahbaz Khan, after serving more than six months but before completing one year service had passed away, however in view of decision taken by Government of Pakistan, to which effect, learned Deputy Attorney General placed statement of Secretary Law Justice, Government of Pakistan before the learned Lahore High Court in the above referred cases, deficiency of certain months to complete one year is covered up. The statement of learned Deputy Attorney General recorded before the learned Lahore High Court, is reproduced below: "

3. The permanent judges under section 474(b) of CSR are entitled to receive proportionate pension at the rate of 17.5% per annum of each year and the period of service above 6 months is to be reckoned as I year of service of pension"

9. In view of Judgment of this court reported as 2011 GBLR 388 read with recent two judgments of Lahore High Court and Hon'ble Supreme Court of Pakistan mentioned above the widow of late Justice Shahbaz Khan is entitled for family pension as the late judge has remained permanent judge of this court for one completed year of service (more than six months). It may be added that all legal heirs are not entitled for pension and other allied benefits. Under Schedule V of the Constitution of Pakistan only widow is entitled for pension and allied benefits. On the death of widow other legal heirs who are mentioned in paragraph 6 of Fifth Schedule shall be entitled, if fall at that time within the category of paragraph 6 of the Fifth Schedule.

10. In view of above legal and factual position, Provincial Government of Gilgit-Baltistan is directed to take up a case with Secretary Gilgit-Baltistan Council, Islamabad for grant of family pension to the widow of late Judge, Mr. Shahbaz Khan, Supreme Appellate Court, Gilgit-Baltistan. Upon receipt of the case from government of GB, Secretary GB Council, Islamabad shall process the same.

11. Office of the Court is directed to send a copy of this Order to Secretary Gilgit-Baltistan Council Islamabad, Secretary Law and Prosecution and Secretary Finance, Gilgit-Baltistan for compliance and submission of report on the next date of hearing.

12. Adjourned for a date in office for compliance report by above authorities. SA/36/GB Order accordingly.