IN THE SUPREME COURT OF PAKISTAN 
 
  (Advisory Jurisdiction) 
 
 
PRESENT: 
MR. JUSTICE KHILJI ARIF HUSSAIN. 
 
 
MR. JUSTICE TARIQ PARVEZ. 
 
 
MR. JUSTICE EJAZ AFZAL KHAN. 
 
 
MR. JUSTICE GULZAR AHMED. 
 
 
MR. JUSTICE SH. AZMAT SAEED. 
 
 
REFERENCE NO.01 OF 2012.  
[Reference by the President of Pakistan 
under Article 186 of the Constitution of 
Islamic Republic of Pakistan, 1973] 
 
For the President:  
Mr. Wasim Sajjad, Sr. ASC. 
 
 
 
 
Mr. Abdul Latif Yousafzai, Sr. ASC. 
 
 
 
 
Mr. Idrees Ashraf, Advocate 
 
 
 
 
Mr. Mehr Khan Malik, AOR. 
 
For Federation: 
 
Mr. Irfan Qadir, A. G. for Pakistan 
 
 
 
 
Mr. Dil Muhammad Alizai, DAG 
 
 
 
 
Barrister Shehryar Riaz Sh. Advocate 
 
 
 
 
Mrs. Shafaq Mohsin, Advocate  
 
 
 
 
Ch. Faisal Hussain, Advocate  
 
Amicus Curie:  
 
Mr. Makhdoom Ali Khan, Sr. ASC. 
 
 
 
 
Mr. Khurram M. Hashmi, Advocate. 
 
 
 
 
Mr. Umair Majeed Malik, Advocate. 
 
 
 
 
Mr. Hyder Ali Khan, Advocate.  
 
 
 
 
Mr. Saad M. Hashmi, Advocate. 
 
 
 
 
Mrs. Asma Hamid, Advocate. 
 
 
 
 
 
 
 
 
 
Khawaja Haris Ahmed, Sr. ASC, 
Assisted by: 
i. 
Kh. Zaheer Ahmed, Advocate  
ii. 
Syed Ali Shah Gilani, Advocate. 
 
Date of Hearing:  
 
14.12.2012. (Reserved) 
 
OPINION  
 
 
Khilji Arif Hussain, J-. Briefly stating the facts, relevant 
to give opinion on the questions referred to by the President of 
Pakistan, through Reference No.1 of 2012, under Article 186 of the 
Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
2 
to as ‘the Constitution’], are that in a meeting of the Judicial 
Commission of Pakistan [hereinafter referred to as ‘the Commission’], 
held on 27.09.2012 to fill a vacancy, the Chief Justice of Pakistan 
initiated the names of Mr. Justice Iqbal Hameed-ur-Rahman, the 
Chief Justice of Islamabad High Court, Islamabad, as a Judge of this 
Court. After deliberations, the Commission nominated Mr. Justice 
Iqbal Hameed-ur-Rahman as a Judge of this Court.  
 
2. 
 
In another meeting of the Commission, on the same 
day, which was attended by Mr. Justice Iqbal Hameed-ur-Rahman, 
the Chief Justice of Islamabad High Court, Islamabad, the Chief 
Justice of Pakistan initiated the name of Mr. Justice Muhammad 
Anwar Khan Kasi, as Chief Justice of Islamabad High Court, 
Islamabad, who after deliberations and with majority of 7 to 2, was 
nominated.  
 
3. 
 
When the tenure of Mr. Shaukat Aziz Siddiqui; Mr. 
Noor-ul-Haq N. Qureshi; and Mr. Muhammad Azeem Khan Afridi, 
who were initially appointed as Additional Judges of Islamabad 
High Court, Islamabad, for a period of one year with effect from the 
date they took oath of their offices was nearing expiry, their cases 
were referred to the Commission and after deliberations it 
nominated the names of Mr. Shaukat Aziz Siddiqui, as a Judge of 
Islamabad High Court, Islamabad with a vote of 8 to 2 and 
unanimously nominated Mr. Noor-ul-Haq N. Qureshi, as an 
Additional Judge of Islamabad High Court, Islamabad, for further 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
3 
period of six months from the date of expiry of his present term, 
whereas the name of Mr. Muhammad Azeem Khan Afridi was 
dropped he was not nominated.  
 
4. 
 
The meeting of the Commission was attended by Mr. 
Justice Muhammad Anwar Khan Kasi, as most senior Judge of 
Islamabad High Court, Islamabad. 
 
5. 
 
On receipt of nominations, in respect of Mr. Justice 
Iqbal Hameed-ur-Rahman, as a Judge of this Court; Mr. Justice 
Muhammad Anwar Khan Kasi, as Chief Justice of Islamabad High 
Court, Islamabad; Mr. Shaukat Aziz Siddiqui, as a Judge of 
Islamabad High Court, Islamabad; and Mr. Noor-ul-Haq N. 
Qureshi, as an Additional Judge of Islamabad High Court, 
Islamabad, for a period of six months from the date of expiry of his 
tenure, the Parliamentary Committee [hereinafter referred to as ‘the 
Committee’], after due consideration unanimously endorsed the 
nominations made by the Commission and sent the same to the 
Prime Minister of Pakistan to forward them to the President of 
Pakistan for issuance of requisite notifications. The President of 
Pakistan, after receipt of the aforesaid nominations, instead of 
issuing the notifications, by way of filing a Reference (Reference 
No.1 of 2012) under Article 186 of the Constitution, sought opinion 
of this Court on the following questions of law, considering them to 
be of public importance:- 
“(i).  
Whether in view of the decision by the Chief Justice of the IHC 
that Mr. Justice Riaz was the senior most judge of the IHC, 
which decision of the Chief Justice was also confirmed by the 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
4 
President of Pakistan, Mr. Justice Kasi could be treated as most 
senior Judge of the IHC? 
 
(ii) 
Whether Mr. Justice Riaz had a legitimate expectancy to be 
appointed as Chief Justice of the IHC on the ground that he was 
the most senior Judge of that Court in the light of the judgment 
of the Supreme Court in the Al-Jehad case referred to above? 
 
(iii) 
Whether the JCP acted in accordance with the Constitution and 
conventions thereof in recommending a junior Judge as Chief 
Justice of the IHC? 
 
(iv) 
Whether JCP was properly constituted as per provision of Article 
175-A of the Constitution as Mr. Justice Kasi who participated 
in the meeting was not a Member thereof and was a stranger to 
the proceedings? 
 
(v) 
Whether the President who is bound by oath of office to preserve, 
protect and defend the Constitution is obliged to make the 
appointments which are not in accordance with the provisions of 
the Constitution? 
 
(vi) 
What should be the manner, mode and criteria before the Judicial 
Commission with respect to the nomination of a person as a 
Judge of High Court, Supreme Court and Federal Shariat Court 
in terms of Clause (8) of Article 175-A of the Constitution of 
Islamic Republic of Pakistan, 1973? 
 
(vii) 
What is the proper role of the Judicial Commission and 
Parliamentary Committee under the Constitution of Pakistan 
with respect to appointment of Judges of Supreme Court, High 
Court and Federal Shariat Court? 
 
(viii) 
What should be the parameters before the Parliamentary 
Committee for the confirmation of the nominee of the Judicial 
Commission in terms of Clause (12) of Article 175-A of the 
Constitution of Islamic Republic of Pakistan, 1973? 
 
(ix) 
Whether the Constitution prohibits reconsideration of the 
nominations by JCP and confirmed by the Parliamentary 
Committee in the light of the observations made by the 
President? 
 
(x) 
What should be the criteria for elevating a Judge/Chief Justice of 
the High Court to the Supreme Court? Is it, their seniority inter-
se as Judge of the High Court or their seniority inter-se as Chief 
Justice of respective High Court be the consideration for 
elevation to the Supreme Court? 
 
(xi) 
Whether the Constitution of Pakistan prohibits individual 
Members of the JCP to initiate names for appointments of Judges 
to the Supreme Court, the High Courts and the Federal Shariat 
Court? 
 
(xii) 
The Parliamentary Committee under Article 175-A of the 
Constitution may confirm or may not confirm a nomination in 
accordance with the provisions stated therein. What is the true 
import and meaning of the word “confirm” and what is the effect 
of the proviso to Clause 12 of Article 175-A which reads as 
follows:  
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
5 
“Provided further that if nomination is not confirmed, 
the Commission shall send another nomination” 
 
(xiii) 
Whether by not providing in camera proceeding for JCP in 
Article 175-A of Constitution of Pakistan, the intention of the 
legislature is to ensure complete transparency and open 
scrutiny?” 
 
6. 
 
As the subject matter of the Reference is of utmost 
importance with regard to the independence of the Judiciary and the 
principle of trichotomy of powers, this Court decided to seek the 
assistance of some senior Lawyers and thus appointed Mr. 
Makhdoom Ali Khan, learned Sr.ASC and Khawaja Haris Ahmed, 
learned ASC, as amicus.   
 
7. 
 
Mr. Waseem Sajjad, learned Sr. ASC while appearing on 
behalf of the Referring Authority contended that the principle 
underlying the determination of seniority of Judges, elevated on the 
same day is seniority in age, Mr. Justice Riaz Ahmed Khan, being 
senior in age is the most Senior Judge and thus is to be nominated as 
Chief Justice, Islamabad High Court. This practice, the learned 
counsel added, being more than a century old has been consistently 
followed in the Indian sub-continent and even after its partition.  
The learned counsel, to substantiate his argument, referred to the 
letter No.F.12(5)/86-AII, dated 30.04.1987, Government of Pakistan, 
Ministry of Justice and Parliamentary Affairs (Justice Division). The 
learned counsel by elaborating his argument contended that when 
according to the dictum laid down in the case of Al-Jehad Trust v. 
Federation of Pakistan (PLD 1996 Supreme Court 324), the most 
senior Judge of a High Court has a legitimate expectancy to be 
appointed as Chief Justice, in the absence of any concrete reason, Mr. 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
6 
Justice Riaz Ahmed Khan being the most senior Judge was entitled 
to be nominated for appointment as Chief Justice and that the 
nomination of Mr. Justice Muhammad Anwar Khan Kasi was not 
only an out right departure from the century old practice but also 
against the law of the land, therefore, the President is not bound to 
appoint such person as Chief Justice. The learned counsel next 
contended that even the Judicial Commission, nominating Mr. 
Justice Shaukat Aziz Siddique for appointment and Mr. Justice 
Noor-ul-Haq Qureshi for extension as Judges of the High Court, 
cannot be said to have been properly constituted in the absence of 
the most senior Judge, therefore, their nominations will not have any 
legal or constitutional sanctity, notwithstanding it having been 
confirmed by the Parliamentary Committee, sent to the Prime 
Minister and then forwarded to the President. It would be all the 
more without any legal and Constitutional sanctity, argued the 
learned counsel, when it does not conform to the manner prescribed 
by the Constitution. The learned counsel to support his contention 
referred to the cases of Human Rights Cases Nos. 4668 of 2006, 1111 
of 2007 and 15283-G of 2010 (PLD 2010 Supreme Court 759), and 
Federation of Pakistan v. Aftab Ahmad Khan Sherpao (PLD 1992 
Supreme Court 723). The fact, maintained the learned counsel, that a 
non-entity, sat, voted and took part in the proceedings would also 
call for its annulment on this score alone. The learned counsel to 
support his contention placed reliance on the case of “Regina. Vs. 
Bow Street Metropolitan Stipendiary Magistrate and others, Ex-
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
7 
parte Pinochet Ugarte (No.2). Even otherwise, the learned counsel 
submitted, that the President being appointing authority is duty 
bound to ensure obedience to the Constitution and the law cannot 
appoint a person who has not been nominated in accordance with 
the provisions of the Constitution.  
 
8. 
 
The learned counsel further contended that if the 
principle of seniority and that of legitimate expectancy linked 
therewith, are ignored without reasons to record, it would give rise 
to the whim and caprice of the person sitting at the peak which is 
not conducive for independence of judiciary.  The learned counsel 
also waxed eloquent by asking this Court to redefine the mode and 
manner of appointing Judges but when we observed that all these 
questions have been elaborately dealt with in the case of Munir 
Hussain Bhatti v. Federation of Pakistan (PLD 2011 Supreme Court 
407), the learned counsel submitted that since they have been dealt 
with collaterally the judgment so rendered being obiter dicta will not 
have binding force. We would have agreed with the learned counsel 
for the President but he could not point out anything striking or 
significant in the judgment which went un-noticed or unattended. It 
is, therefore, not obiter dicta by any attribute. This judgment could 
have been treated as sub-silentio a precedent not fully argued, but 
again the learned counsel could not advert to any legal or 
Constitutional aspect of the case which escaped the notice of the 
Bench, rendering the judgment, so as to relegate it, to the status of 
sub-silentio. The learned counsel after taking us through various 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
8 
parts of the judgment rendered in the case of Federation of Pakistan 
v. Sindh High Court Bar Association (PLD 2012 Supreme Court 
1067), contended that its reference in the minutes of the meeting of 
the Judicial Commission, to justify the inference that Mr. Justice 
Muhammad Anwar Khan Kansi is the most Senior Judge of the 
High Court, is absolutely uncalled for, as it, when read carefully, 
does not support any such inference. How could the proceeding in 
the Judicial Commission be held in camera, asked the learned 
counsel, when the legislature in its wisdom purposely provided 
otherwise so as to ensure complete transparency and open scrutiny. 
What would be the criterion asked the learned counsel, for elevating 
Judges or a Chief Justice of a High Court to the Supreme Court and 
whether it is inter se seniority of the Judges or the Chief Justices of 
the High Courts which constitutes a determining factor?  
 
9. 
 
Learned Attorney General appearing on the notice of 
the Court contended that the Judicial Commission was not properly 
constituted, as persona designata did not attend the meeting and the 
person who attended the meeting was just a non-entity, therefore, 
the whole process shall stand vitiated. The President, the learned 
Attorney General submitted, is not bound to appoint a nominee of 
such Judicial Commission notwithstanding nomination so made was 
confirmed by the Parliamentary Committee and forwarded to the 
President by the Prime Minister on its receipt. The learned Attorney 
General next contended that where in the judgment rendered in the 
case of Sindh High Court Bar Association v. Federation of Pakistan 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
9 
(PLD 2009 Supreme Court 879), this Court annulled the 
appointment of many Judges for want of recommendation by the 
consultee, a nomination originating from the Judicial Commission 
which was not properly constituted has to be given alike treatment.  
The learned Attorney General by referring to the commentary on the 
Constitution of India by Durga Das Basu argued that the President is 
not a robot placed in the President House nor a Computer controlled 
automation, nor a figure head nor ornamental piece placed in the 
show window of the nation called the President’s House. Instead, 
the learned Attorney General submitted, he is a living human who 
on being selected by the nation is endowed with all dignity, honour 
and prestige as head of the republic for upholding the Constitution 
and the laws, therefore, his role as such cannot be doubted in any 
situation. Seen from such an angle, the learned Attorney General 
concluded, the President cannot be kept out of the affairs regulating 
the appointment of Judges. 
 
10. 
 
Mr. Makhdoom Ali Khan, learned Sr. ASC appeared as 
Amicus Curie on notice of the Court. The learned counsel in the first 
instance addressed the Court as to the binding nature of an advice 
rendered by this Court in the exercise of its advisory jurisdiction. 
The learned counsel by referring to the relevant paragraph of the 
judgment rendered in Reference No. 02 of 2005 by the President of 
Pakistan (PLD 2005 Supreme Court 873), submitted that though an 
opinion given by the Court on a reference filed by the President is 
not a decision between the parties but since it is handed down after 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
10 
undertaking an extensive judicial exercise and hearing of Advocates 
it has a binding force. Such advice, the learned counsel submitted 
has to be esteemed and accepted with utmost respect. The learned 
counsel then by referring to various Articles of the Constitution in 
general and Article 175-A in particular contended that the mode and 
manner of appointing Judges of the superior Courts has under gone 
a change and that the whole process from the inception to the end is 
now regulated by the latter. The learned counsel submitted that after 
a person has been nominated by the Judicial Commission, his name 
has been confirmed by the Parliamentary Committee, sent to the 
Prime Minister and then forwarded by the latter to the President for 
appointment, the President will have no choice but to appoint him. 
While commenting on the mode and manner of appointment of 
Judges and things ancillary thereto, the learned counsel submitted 
that an exhaustive exercise has been taken in the cases of Al-Jehad 
Trust (supra) and Munir Hussain Bhatti (supra), therefore, yet 
another exercise is hardly called for. The learned counsel, however, 
submitted that the principle and practice of appointing the most 
Senior Judge as Chief Justice is not open to any dispute and thus 
cannot be departed from without reasons to be recorded as held in 
the case of Al-Jehad Trust (supra). The President or for that matter 
any other person performing the affairs of Federation, the learned 
counsel submitted, is duty bound to protect the Constitution and 
that the instant reference appears to be an effort in this behalf.  
 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
11 
11. 
 
Khawaja Haris Ahmed, Sr. ASC who was also asked to 
assist the Court as Amicus Curie, highlighted the salient features of 
his written submissions. He by referring to Article 175-A of the 
Constitution of Pakistan submitted that the role of the President in 
the appointment of Judges is more-or-less ministerial, once a 
nomination 
originating from the Judicial Commission and 
confirmed by the Parliamentary Committee has been sent to the 
Prime Minister and then forwarded to the President. He by referring 
to the judgment rendered in the case of Munir Hussain Bhatti 
(supra), submitted that where almost all of the questions raised in the 
reference have been answered in the judgment it would be futile to 
reiterate the same.  
 
12. 
 
With regard to the question relating to seniority, the 
learned counsel submitted that the same being person specific is not 
one of law, therefore, this Court cannot afford to decide such 
question in its advisory jurisdiction. The learned counsel next 
contended that the omission to mention the expression most senior 
Judge in the provision relating to appointment of the Chief Justice of 
a High Court is significant and that in the absence of any express 
provision even the most senior Judge cannot have legitimate 
expectancy, as the Constitution on this score has remained the same 
even after the dictum laid down in the case of Al-Jehad Trust (supra). 
 
13. 
 
In order to give an opinion on the questions referred to 
by the President of Pakistan and reproduced hereinabove, we would 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
12 
like to discuss the legislative history of various Articles of the 
Constitution.  
 
14. 
 
The first document that served as the Constitution of 
Pakistan was the Government of India Act, 1935. The constituent 
assembly, elected in the year 1946, after nine years adopted the first 
Constitution of 1956, which was abrogated in October, 1958 by 
Gen.(R) Ayub Khan. The 1962 Constitution was abrogated on 
25.03.1969 
by 
second 
Martial 
Law 
Administrator 
Gen.(R) 
Muhammad Yahya Khan. In December, 1970, elections were held, 
however, due to various reasons, which we would not like to 
comment upon, the National Assembly did not meet due to 
widespread disturbance in East Pakistan and Mr. Zulfiqar Ali 
Bhutto was sworn in on 20.12.1971 as President of Pakistan. After 
gaining power, Mr. Zulfiqar Ali Bhutto invited the leaders of 
political parties to meet on 19.07.1972, which after intensive 
discussions resulted in an agreement. A Committee of 25 Members 
was appointed to prepare a draft for a permanent Constitution of 
Pakistan and after deliberations; the Assembly passed a bill 
unanimously on 19.04.1973. The Constitution of Pakistan, 1973 came 
into effect on 14.08.1973, providing Parliamentary Form of 
Government, based on the trichotomy of power. 
 
15. 
 
Prior to Constitution (Eighteenth) Amendment, the 
procedures for appointment of a Judge of the superior Courts 
mentioned in the Constitutions of Islamic Republic of Pakistan, 1962 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
13 
and 1973 were identical to some extent. Before Constitution 
(Eighteenth) Amendment, the Articles 177 and 193 of the 
Constitution empowered the President of Pakistan to appoint the 
Chief Justice of Pakistan; the Chief Justices of the High Courts; and 
the Judges of the superior Courts. From perusal of the said Articles, 
it appears that though appointment of a Judge of the superior 
Courts was to be made by the President, but after consultation with 
the Chief Justice of Pakistan, the Governor concerned and the Chief 
Justice of the concerned High Court (except where the appointment 
is that of a Chief Justice). The appointment of a Judge of the superior 
Courts is a constitutional appointment and mode thereof is provided 
by the Constitution itself. The “consultation”, as envisaged prior to 
the Constitution (Eighteenth and Nineteenth) Amendments, 
required by the President of Pakistan from the consultees was not a 
formality, but was mandatory and no appointment or confirmation 
of a Judge of the superior Courts could be made without resorting to 
the consultative process.   
 
16. 
 
In the case of Al-Jehad Trust v. Federation of Pakistan 
(PLD 1996 Supreme Court 324), it was held that if the Chief Justice 
of the High Court and the Chief Justice of Pakistan give a positive 
opinion about the suitability of a candidate, but the Governor on the 
basis of information received about his antecedents gives a negative 
opinion, the President is empowered to decline the appointment of 
the candidate. On the other hand, if the Chief Justice of the High 
Court and the Chief Justice of Pakistan give a negative opinion 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
14 
about a candidate on the basis of their expert opinion that the 
candidate cannot be appointed, then the opinion of the Chief Justice 
cannot be ignored and due weight is to be given to his opinion. It 
was further held that the President/Executive does not have a final 
say in the matter of appointment of the Judges of the superior 
Courts and if the opinion of the Chief Justice is ignored, the 
President/Executive should give reasons which could be juxtaposed 
with the reasons of the Chief Justice to find out as to what reasons 
are in the public interest. 
 
17. 
 
Immediately, after the pronouncement of judgment in 
the case of Al-Jehad Trust (supra), the President of Pakistan filed a 
Reference (Reference No.2 of 1996) under Article 186 of the 
Constitution seeking opinion of this Court whether the President’s 
powers to make the appointment of Judges of the superior Courts, 
such appointment is subject to the provisions of Article 48(1), which 
prescribed that in the exercise of his functions, the President shall act 
in accordance with the advice of the Prime Minister. This Court, 
vide judgment reported as Al-Jehad Trust v. Federation of Pakistan 
(PLD 1997 Supreme Court 84), after discussing all aspects of the 
matter, in detail, came to the conclusion that in respect of 
appointment of the Judges as contemplated under Articles 177 and 
193 of the Constitution, the advice of the Cabinet/Prime Minister 
under Article 48 (1) is attracted. In the said case at page 141, it was 
held as under:- 
“74. 
After considering the arguments advanced for and 
against the proposition on the point whether for making 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
15 
appointments of Judges under Articles 177 and 193, which 
are special provisions, advice of the Prime Minister to the 
President under general provision of Article 48 is attracted or 
not, we are of the considered opinion that there is no 
apparent conflict in Articles 48 on one side and 177 and 193 
on the other side because Articles 177 and 193 are to be read 
in conjunction with Article 48 (1) which is omni potent 
provision being special characteristic of Constitution of 1973 
which envisages Parliamentary Form of Government. If the 
Constitution-makers intended even after promulgation of 
Eighth Amendment to exclude Article 48(1) from application 
to Articles 177 and 193, then they could have expressly 
mentioned in Articles 177 and 193 that the President while 
performing his functions under these Articles is allowed to 
act in his discretion excluding advice of the Prime Minister 
and would be deemed to be acting under Article 48(2). For 
such reasons we are of the view that there is no conflict as 
appointments under Articles 177 and 193 of the Constitution 
are made in conjunction with Article 48(1) of the 
Constitution always attracting and applying advice of the 
Prime Minister to the President.”    
 
18. 
 
After the pronouncement of the authoritative decision 
by this Court in the case of Al-Jehad Trust (ibid) by Constitution 
(Eighteenth) Amendment Act, 2010 (Act 10 of 2010), the 
appointment procedures of the Judges of the superior Courts were 
radically changed. 
 “175A. Appointment of Judges to the Supreme Court, High Courts 
and the Federal Shariat Court.- (1) There shall be a Judicial 
Commission of Pakistan, hereinafter in this Article referred to 
as the Commission, for appointment of Judges of the 
Supreme Court, High Courts and the Federal Shariat Court, 
as herein after provided. 
 
(2) 
For appointment of Judges of the Supreme Court, the 
Commission shall consist of-- 
 
 
(i) 
Chief Justice of Pakistan; 
Chairman 
 
 
(ii) 
two most senior Judges of the 
 
 
Supreme Court;  
 
Members 
 
 
(iii) 
a former Chief Justice or a 
Member 
 
 
former Judge of the Supreme 
 
 
Court of Pakistan to be nominated 
 
 
by the Chief Justice of Pakistan, 
 
 
in consultation with the two member 
 
 
Judges, for a term of two years; 
 
 
(iv) 
Federal Minister for Law and 
Member 
 
 
Justice;  
 
 
 
 
 
(v) 
Attorney-General for 
 
Member 
 
 
Pakistan; and 
 
 
 
 
 
(vi) 
a Senior Advocate of the 
Member 
 
 
Supreme Court of Pakistan 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
16 
 
 
to be nominated by the Pakistan 
 
 
Bar Council for a term of 
 
 
two years. 
 
(3) 
Notwithstanding anything contained in clause (1) or 
clause (2), the President shall appoint the most senior 
Judge of the Supreme Court as the Chief Justice of 
Pakistan. 
 
(4) 
The Commission may make rules regulating its 
procedure. 
 
(5) 
For appointment of Judges of a High Court, the 
Commission in clause (2) shall also include the 
following, namely: ---  
 
 
(i) 
Chief Justice of the High Court Member 
 
 
to which the appointment is being 
 
 
made; 
 
 
(ii) 
the most senior Judge of that 
Member 
 
 
High Court; 
 
 
(iii) 
Provincial Minister for Law; 
Member 
 
 
and 
 
 
(iv) 
a senior advocate to be  
Member 
 
 
nominated by the Provincial 
 
 
Bar Council for a term of two 
 
 
years: 
 
 
 
Provided that for appointment of the Chief 
Justice of a High Court, the most senior Judge of the 
Court shall be substituted by a former Chief Justice or 
former Judge of that Court, to be nominated by the 
Chief Justice of Pakistan in consultation with the two 
member Judges of the Commission mentioned in 
clause (2): 
 
 
 
Provided further that if for any reason the 
Chief Justice of High Court is not available, he shall 
also be substituted in the manner as provided in the 
foregoing proviso. 
 
(6) 
For appointment of Judges of the Islamabad High 
Court, the Commission in clause (2) shall also include 
the following, namely:--- 
 
 
(i) 
Chief Justice of the Islamabad 
Member 
 
 
High Court; and 
 
 
(ii) 
the most senior Judge of that 
 
 
High Court: 
 
 
Member 
 
Provided that for initial appointment 
of the Judges of the Islamabad High Court, 
the Chief Justices of the four Provincial High 
Courts shall also be members of the 
Commission: 
 
Provided further that subject to the 
foregoing proviso, in case of appointment of 
Chief Justice of Islamabad High Court, the 
provisos to clause (5) shall, mutatis mutandis, 
apply. 
 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
17 
(7) 
For appointment of Judges of the Federal Shariat 
Court, the Commission in clause (2) shall also include 
the Chief Justice of the Federal Shariat Court and the 
most senior Judge of that Court as its members: 
 
Provided that for appointment of Chief 
Justice of Federal Shariat Court, the provisos to clause 
(5) shall, mutatis mutandis, apply. 
 
(8) 
The Commission by majority of its total membership 
shall nominate to the Parliamentary Committee one 
person, for each vacancy of a Judge in the Supreme 
Court, a High Court or the Federal Shariat Court, as 
the case may be; 
 
(9) 
The Parliamentary Committee, hereinafter in this 
Article referred to as the Committee, shall consist of 
the following eight members, namely: --- 
 
(i) 
four members from the Senate, and 
 
(ii) 
four members from the National Assembly. 
 
(10) 
Out of the eight members of the Committee, four 
shall be from the Treasury Benches, two from each 
House and four from the Opposition Benches, two 
from each House. The nomination of members from 
the Treasury Benches shall be made by the Leader of 
the House and from the Opposition Benches by the 
Leader of the Opposition. 
 
(11) 
Secretary, Senate shall act as the Secretary of the 
Committee. 
 
(12) 
The Committee on receipt of a nomination from the 
Commission may confirm the nominee by majority of 
its total membership within fourteen days, failing 
which the nomination shall be deemed to have been 
confirmed: 
 
Provided that the committee may not confirm 
that nomination by three-fourth majority of its total 
membership within the said period, in which case the 
Commission shall send another nomination. 
 
(13) 
The Committee shall forward the name of the 
nominee confirmed by it or deemed to have been 
confirmed to the President for appointment. 
 
(14) 
No action or decision taken by the Commission or a 
Committee shall be invalid or called in question only 
on the ground of the existence of a vacancy therein or 
of the absence of any member from any meeting 
thereof. 
 
(15) 
The Committee shall make rules for regulating its 
procedure.” 
 
The Constitution (Eighteenth) Amendment was called in question 
through various petitions in this Court and after hearing, an interim 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
18 
short order was passed; for convenience sake relevant portion 
therefrom, reads as under:-  
“While doing so we take note of the fair stand taken by Mian 
Raza Rabbani, Chairman of the Special Committee of the 
Parliament for Constitutional Reforms and the Attorney 
General for Pakistan to which reference has been made in 
Para-12 above and hold that Article 175A shall be given effect 
to in the manner as under:- 
 
(i) 
In all cases of an anticipated or actual vacancy a 
meeting of the Judicial Commission shall be 
convened by the Chief Justice of Pakistan in his 
capacity as its Chairman and the names of candidates 
for appointment to the Supreme Court shall be 
initiated by him, of the Federal Shariat Court by the 
Chief Justice of the said Court and of the High Courts 
by the respective Chief Justices. 
(ii) 
The Chief Justice of Pakistan as head of the Judicial 
Commission shall regulate its meetings and affairs as 
he may deem proper.  
(iii) 
The proceedings of the Parliamentary Committee 
shall be held in camera but a detailed record of its 
proceedings and deliberations shall be maintained. 
The Parliamentary Committee shall send its approval 
of recommendations of the Judicial Commission to 
the Prime Minister for onward transmission to the 
President for necessary orders. If the Parliamentary 
Committee disagrees or rejects any recommendations 
of Judicial Commission, it shall give specific reasons 
and the Prime Minister shall send copy of the said 
opinion of the Committee to the Chief Justice of 
Pakistan and the same shall be justicable by the 
Supreme Court. 
 
19. 
 
In the light of the interim order, the Constitution 
(Nineteenth) Amendment Act of 2011 was passed and to some 
extent, the observations made by this Court were accepted and 
Article 175A was amended, which reads as under:- 
175A. Appointment of Judges to the Supreme Court, High Courts and 
the Federal Shariat Court.-  
 
(1) There shall be a Judicial Commission of Pakistan, 
hereinafter in this Article referred to as the Commission, 
for appointment of Judges of the Supreme Court, High 
Courts and the Federal Shariat Court, as hereinafter 
provided. 
  
(2) For appointment of Judges of the Supreme Court, the 
Commission shall consist of-- 
(i) Chairman Chief Justice of Pakistan; 
(ii) Members four most senior Judges of the Supreme 
Court; 
(iii) Member  a former Chief Justice or a former Judge of 
the Supreme Court of Pakistan to be 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
19 
nominated by the Chief Justice of Pakistan, 
in consultation with the four member 
Judges, for a term of two years; 
(iv) Member  Federal Minister for Law and Justice; 
(v) Member  Attorney-General for Pakistan; and 
(vi) Member  a Senior Advocate of the Supreme Court of 
Pakistan nominated by the Pakistan Bar 
Council for a term of two years. 
 
  
(3) Notwithstanding anything contained in clause (1) or clause 
(2), the President shall appoint the most senior Judge of the 
Supreme Court as the Chief Justice of Pakistan. 
  
(4) The Commission may make rules regulating its procedure. 
  
(5) For appointment of Judges of a High Court, the 
Commission in clause (2) shall also include the following, 
namely:- 
(i) Member  Chief Justice of the High Court to which the 
appointment is being made; 
(ii) Member  the most senior Judge of that High Court; 
(iii) Member  Provincial Minister for Law; and 
(iv) Member   An advocate having not less than fifteen 
years practice in the High Court to be 
nominated by the concerned Bar Council for 
a term of two years: 
 
Provided that for appointment of Chief Justice of a 
High Court, the most senior Judge mentioned in paragraph 
(ii) shall not be Member of the Commission:  
 
 
Provided further that if for any reason the Chief 
Justice of High Court is not available, he shall be 
substituted by a former Chief Justice or former Judge of 
that Court, to be nominated by the Chief Justice of Pakistan 
in consultation with the four member Judges of the 
Commission in paragraph (ii) of clause (2): 
  
(6) For appointment of Judges of the Islamabad High Court, 
the Commission in clause (2) shall also include the 
following, namely:- 
(i) Member  Chief Justice of the Islamabad High Court; 
and 
(ii) Member  the most senior Judge of that High Court 
 
Provided that for initial appointment of the Chief 
Justice and the Judges of the Islamabad High Court, the 
Chief Justices of the four Provincial High Courts shall also 
be members of the Commission: 
 
 
Provided further that subject to the foregoing 
proviso, in case of appointment of Chief Justice of 
Islamabad High Court, the provisos to clause (5) 
shall, mutatis mutandis, apply. 
  
(7) For appointment of Judges of the Federal Shariat Court, the 
Commission in clause (2) shall also include the Chief 
Justice of the Federal Shariat Court and the most senior 
Judge of that Court as its members: 
 
 
Provided that for appointment of Chief Justice of 
Federal Shariat Court, the provisos to clause (5) 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
20 
shall, mutatis mutandis, apply. 
  
(8) The Commission by majority of its total membership shall 
nominate to the Parliamentary Committee one person, for 
each vacancy of a Judge in the Supreme Court, a High 
Court or the Federal Shariat Court, as the case may be. 
  
(9) The Parliamentary Committee, hereinafter in this Article 
referred to as the Committee, shall consist of the following 
eight members, namely:- 
(i) Four members from the Senate; and 
(ii) Four members from the National Assembly. 
 
Provided that when the National Assembly is 
dissolved, the total membership of the Parliamentary 
Committee shall consist of the members from the Senate 
only mentioned in paragraph (i) and the provisions of this 
article, shall, mutatis mutandis, apply. 
  
(10) Out of the eight members of the Committee, four shall be 
from the Treasury Benches, two from each House and four 
from the Opposition Benches, two from each House. The 
nomination of members from the Treasury Benches shall 
be made by the Leader of the House and from the 
Opposition Benches by the Leader of the Opposition. 
  
(11) Secretary, Senate shall act as the Secretary of the 
Committee. 
  
(12) The Committee on receipt of a nomination from the 
Commission may confirm the nominee by majority of its 
total membership within fourteen days, failing which the 
nomination shall be deemed to have been confirmed: 
 
Provided that the Committee, for reasons to be 
recorded, may not confirm the nomination by three-fourth 
majority of its total membership within the said period. 
 
Provided further that if a nomination is not 
confirmed by the Committee it shall forward its decision 
with reasons so recorded to the Commission through the 
Prime Minister.  
 
Provided further that if a nomination is not 
confirmed, the Commission shall send another nomination. 
  
(13) The Committee shall send the name of the nominee 
confirmed by it or deemed to have been confirmed to the 
Prime Minister who shall forward the same to the 
President for appointment. 
  
(14) No action or decision taken by the Commission or a 
Committee shall be invalid or called in question only on 
the ground of the existence of a vacancy therein or of the 
absence of any member from any meeting thereof. 
  
(15) The meetings of the Committee shall be held in camera and 
the record of its proceedings shall be maintained.  
(16) The provisions of Article 68 shall not apply to the 
proceedings of the Committee. 
(17) The Committee may make rules for regulating its 
procedure. 
 
 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
21 
 
 
It is in this background that thirteen questions have 
been framed and are placed before this Court seeking opinion under 
Article 186 of the Constitution. 
 
20. 
 
We are recording this opinion without touching the 
vires of Article 175A which is subject matter of various petitions 
pending before this Court.   
 
21. 
 
First of all, we would like to give our opinion on 
questions No.(v) & (ix) although framed separately but are 
interconnected. These are as under:-  
(v) 
Whether the President who is bound by oath of office to 
preserve, protect and defend the Constitution is obliged to 
make the appointments which are not in accordance with 
the provisions of the Constitution? and 
 
(ix) 
Whether the Constitution prohibits reconsideration of the 
nominations by JCP and confirmed by the Parliamentary 
Committee in the light of the observations made by the 
President? 
 
22. 
 
The suitability of a candidate about his ability, legal 
competency and integrity, which was to be determined by the Chief 
Justice of Pakistan and the Chief Justice of the concerned High Court 
prior to the Constitution (Eighteenth and Nineteenth) Amendments 
now is to be determined by the Commission, a body consisting of 
experts from all stakeholders i.e. the Judiciary, the Executive and 
Bars, created by Article 175A of the Constitution. Although each 
Member of the Commission is equal, including the Chief Justice of 
Pakistan/Chief Justice of the concerned High Court having one vote 
each, yet the Constitution Framers in their wisdom gave decisive 
vote to the Judiciary, as out of 11 Members of the Commission 08 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
22 
Members are from the Judiciary alongwith one retired Judge of the 
Supreme Court, nominated by the Chief Justice of the Pakistan.  
 
23. 
 
To discharge the duty put on their shoulders by the 
Constitution Makers, to select the best person as a Judge of the 
superior Courts, the most senior Judges of the Supreme Court and 
the High Courts, being Members of the Commission, having one 
vote each, are supposed to form their opinions independently about 
the ability, legal competency, integrity and administrative skill of 
the person, whose name is initiated by the Chief Justice of Pakistan 
or the Chief Justice of the High Court, without which, the 
fundamental rights of the Citizens cannot be secured.        
 
24. 
 
The President of Pakistan makes appointment to 
various (non-elective) constitutional offices besides appointing the 
High Court and Supreme Court Judges like the Auditor General of 
Pakistan; the Chief Election Commissioner and its Members; the 
Chairman, Federal Public Service Commission; Care Taker Prime 
Minister, Members of Islamic Council and the Chiefs of Armed 
Forces. We would like to reproduce hereinbelow the relevant 
Articles of the Constitution to appreciate the questions involved:-  
“Audit and Accounts 
168. (1) There shall be an Auditor-General of Pakistan, who 
shall be appointed by the President. 
(2) Before entering upon office, the Auditor-General shall 
make before the Chief Justice of Pakistan oath in the form set 
out in the Third Schedule.     
(3) The Auditor-General shall, unless he sooner resigns or is 
removed from office in accordance with clause (5), hold office 
for a term of four years from the date on which he assumes    
such office or attains the age of sixty-five years, whichever is 
earlier. 
(3A) The other terms and conditions of   service of the 
Auditor- General shall be determined by Act of Majlis-e-
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
23 
Shoora (Parliament); and, until so determined, by Order of 
the President.] 
(4) A person who has held office as Auditor-General shall not 
be eligible for further appointment in the service of Pakistan 
before the expiration of two years after he has ceased to hold 
that office. 
(5) The Auditor-General shall not be removed from office 
except in the like manner and on the like grounds as a Judge 
of the Supreme Court. 
(6) At any time when the office of the Auditor-General is 
vacant or the Auditor-General is absent or is unable to 
perform the functions of his office due to any cause, [the 
President may appoint the most senior officer in the Office of 
the Auditor-General to] act as Auditor- General and perform 
the functions of that office. 
177 
Appointment of Supreme Court Judges.  
177. (1) The Chief Justice of Pakistan and each of the other 
Judges of the Supreme Court shall be appointed by the 
President in accordance with Article 175A. 
(2) A person shall not be appointed a Judge of the Supreme 
Court unless he is a citizen of Pakistan and— 
(a) has for a period of, or for periods aggregating, not less 
than five years been a Judge of a High Court (including a 
High Court which existed in Pakistan at any time before the 
commencing day); or 
(b) has for a period of, or for periods aggregating, not less 
than fifteen years been an advocate of a High Court 
(including a High Court which existed in  Pakistan at any 
time before the commencing day). 
 
Appointment of High Court Judges. 
193. [(1) The Chief Justice and each of other Judges of a High 
Court shall be appointed by the President in accordance with 
Article 175A.] 
(2) A person shall not be appointed a Judge of a High Court 
unless he is a citizen of Pakistan, is not less than [forty-five] 
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. 
 
Chief Election Commissioner and Election Commissions  
213. (1) There shall be a Chief Election Commissioner (in this 
Part referred to as the Commissioner), who shall be 
appointed by the President. 
(2) No person shall be appointed to be Commissioner unless 
he is, or has been, a Judge of the Supreme Court or is, or has 
been, a Judge of a High Court and is qualified under 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
24 
paragraph (a) of clause (2) of Article 177 to be appointed a 
Judge of the Supreme Court.  
(2A) The Prime Minister shall in consultation with the Leader 
of the Opposition in the National Assembly, forward three 
names for appointment of the Commissioner to a 
Parliamentary Committee for hearing and confirmation of 
any one person. 
(2B) The Parliamentary Committee to be constituted by the 
Speaker shall comprise fifty percent members from the 
Treasury Benches and fifty percent from the Opposition 
Parties, 
based 
on 
their 
strength 
in 
Majlis-e-Shoora 
(Parliament), 
to 
be 
nominated 
by 
the 
respective 
Parliamentary Leaders: 
Provided that in case there is no consensus between the 
Prime Minister and the Leader of the Opposition, each shall 
forward separate lists to the Parliamentary Committee for 
consideration which may confirm any one name: 
[Provided further that the total strength of the Parliamentary 
Committee shall be twelve members out of which one-third 
shall be from the Senate: 
Provided also that when the National Assembly is dissolved 
and a vacancy occurs in the office of the Chief Election 
Commissioner, the [total membership of the Parliamentary 
Committee shall consist of] the members from the Senate 
only and the foregoing provisions of this clause shall, mutatis 
mutandis, apply.] 
(3) The Commissioner shall have such powers and functions 
as are conferred on him by the Constitution and law. 
 
Time of Election and bye-election 
224(1)(1A) On dissolution of the Assembly on completion of 
its term, or in case it is dissolved under Article 58 or Article 
112, the President, or the Governor, as the case may be, shall 
appoint a care-taker Cabinet: 
Provided that the care-taker Prime Minister shall be 
appointed by the President in consultation with the Prime 
Minister and the Leader of the Opposition in the outgoing 
National Assembly, and a care-taker Chief Minister shall be 
appointed by the Governor in consultation with the Chief 
Minister and the Leader of the Opposition in the outgoing 
Provincial Assembly: 
 “224A. Resolution by Committee or Election Commission.- 
(1) In case the Prime Minister and the “Leader of the 
Opposition in the outgoing National Assembly do not agree 
on any person to be appointed as the care-taker Prime 
Minister, within three days of the dissolution of the National 
Assembly, they shall forward two nominees each to a 
Committee to be immediately constituted by the Speaker of 
the National Assembly, comprising eight members of the 
outgoing National Assembly or the Senate, or both, having 
equal representation from the Treasury and the Opposition, 
to be nominated by the Prime Minister and the Leader of the 
Opposition respectively. 
(2) In case a Chief Minister and the Leader of the Opposition 
in the outgoing Provincial Assembly do not agree on any 
person to be appointed as the care-taker Chief Minister, 
within three days of the dissolution of that Assembly, they 
shall forward two nominees each to a Committee to be 
immediately constituted by the Speaker of the Provincial 
Assembly, comprising six members of the outgoing 
Provincial Assembly having equal representation from the 
Treasury and the Opposition, to be nominated by the Chief 
Minister and the Leader of the Opposition respectively. 
(3) The Committee constituted under clause (1) or (2) shall 
finalize the name of the care-taker Prime Minister or care-
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
25 
taker Chief Minister, as the case may be, within three days of 
the referral of the matter to it: 
Provided that in case of inability of the Committee to decide 
the matter in the aforesaid period, the names of the nominees 
shall be referred to the Election Commission of Pakistan for 
final decision within two days. 
 
228.  
 
Composition, etc., of Islamic Council. 
228. (1) There shall be, constituted within a period of ninety 
days from the commencing day a Council of Islamic Ideology, 
in this part referred to as the Islamic Council. 
(2) The Islamic Council shall consist of such members, being 
not less than eight and not more than 3[twenty] as the 
President may appoint from amongst persons having 
knowledge of the principles and philosophy of Islam as 
enunciated in the Holy Quran and Sunnah, or 
understanding 
of 
the 
economic, 
political, 
legal 
or 
administrative problems of Pakistan.  
(3) While appointing members of the Islamic Council, the 
President shall ensure that— 
(a) so far as practicable various schools of thought are 
represented in the Council; 
(b) not less than two of the members are persons each of whom 
is, or has been a Judge of the Supreme Court or of a High 
Court;  
(c) not less than 1[one third] of the members are persons each 
of whom has been engaged, for a period of not less than fifteen 
years, in Islamic research or instruction; and 
(d) at least one member is a woman.  
2[(4) The President shall appoint one of the members of the 
Islamic Council to be the Chairman thereof.]  
(5) Subject to clause (6), a member of the Islamic Council shall 
hold office for a period of three years.  
(6) A member may, by writing under his hand addressed to the 
President, resign his office or may be removed by the President 
upon the passing of a resolution for his removal by a majority 
of the total membership of the Islamic Council. 
 
Public Service Commission 
242. (1) Majlis-e-Shoora (Parliament) in relation to the affairs 
of the Federation, and the Provincial Assembly of a Province 
in relation to the affairs of the Province may, by law provide 
for the establishment and constitution of a Public Service 
Commission. 
(1A) The Chairman of the Public Service Commission 
constituted in relation to the affairs of the Federation shall be 
appointed by the President on the advice of the Prime 
Minister.   
(1B) The Chairman of the Public Service Commission 
constituted in relation to affairs of a Province shall be 
appointed by the Governor on advice of the Chief Minister.] 
(2) A Public Service Commission shall perform such functions 
as may be prescribed by law. 
  
Armed Forces 
243. (1) The Federal Government shall have control and 
command of the Armed Forces. 
(2) Without prejudice to the generality of the foregoing 
provision, the Supreme Command of the Armed Forces shall 
vest in the President. 
(3) The President shall subject to law, have power— 
(a) to raise and maintain the Military, Naval and Air Forces of 
Pakistan; and the Reserves of such Forces; and 
(b) to grant Commissions in such Forces. 
(4) The President shall, on advice of the Prime Minister, 
appoint— 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
26 
(a) the Chairman, Joint Chiefs of Staff Committee ; 
(b) the Chief of the Army Staff; 
(c) the Chief of the Naval Staff; and 
(d) the Chief of the Air Staff,  
and shall also determine their salaries and allowances]” 
 
25. 
 
A bare reading of the Article 168 prior to Constitution 
(Eighteenth and Nineteenth) Amendments, reveals that Clause 3 of 
Article 168 was substituted by Sub Clause 3 of Article 168 (1) of the 
Constitution, as adopted in 1973 Constitution by providing a term of 
office of the Auditor General of Pakistan.  
 
26. 
 
Articles 
177(1) 
and 
193(1) 
were 
amended 
by 
Constitution 
(Eighteenth 
and 
Nineteenth) 
Amendments 
by 
providing that the Chief Justice of Pakistan and Chief Justices of the 
Provincial High Courts and Judges of superior Courts will be 
appointed by the President of Pakistan, in accordance with Article 
175A of the Constitution, which Article gives a complete process and 
mechanism for the appointment of Judges of the superior Courts.  
 
27. 
 
Article 
213 
for 
appointment 
of 
Chief 
Election 
Commissioner and its Members was amended by inserting new 
Clauses 2A & 2B by Constitution (Eighteenth) Amendment and 
proviso to clause 2B by Constitution (Nineteenth) Amendment. By 
Clause 2B of Article 213 of the Constitution, a Parliamentary 
Committee (to some extent identical to Parliamentary Committee in 
the matter relating to appointment of Judges of the superior Courts) 
has been constituted to confirm one person out of three names each 
proposed by the Prime Minister and the Leader of the Opposition, if 
there is no consensus between them on three names. The ‘discretion’ 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
27 
of the President to appoint the Chief Election Commissioner, as 
provided in the 1973 Constitution was omitted from sub clause 1 of 
Article 213 of the Constitution, which means that though the 
President 
of 
Pakistan 
has 
to 
appoint 
the 
Chief 
Election 
Commissioner and its Members, he now has no discretion except to 
appoint 
the 
“person” 
whose 
name 
is 
confirmed 
by 
the 
Parliamentary Committee, as provided by Article 175A(13) of the 
Constitution for appointment of Judges of the superior Courts. He is 
completely ousted from the process of nomination of name and the 
only role left for him is to “appoint” the nominee of the Committee 
and or of Prime Minister & Leader of Opposition as the case may be.  
 
28. 
 
Article 224(1A) is inserted by Constitution (Eighteenth) 
Amendment, whereas Article 224A is inserted by Constitution 
(Twentieth) Amendment providing for appointment of care-taker 
Cabinet/Prime Minister. On dissolution of the Assembly on 
completion of its term or in case it is dissolved under Article 58 or 
Article 112, the President or the Governor, as the case may be, shall 
appoint a care-taker Prime Minister in consultation with the Prime 
Minister and the Leader of Opposition in the outgoing National 
Assembly. The proviso of Article 224(1A) inserted by Constitution 
(Eighteenth) Amendment made it mandatory to appoint the person 
as care-taker Prime Minister, nominated by the Prime Minister and 
the Leader of the Opposition. In case, the Prime Minister and         
the Leader of the Opposition in the outgoing National Assembly do 
not agree on any person, they shall forward two nominees each to a 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
28 
committee comprising 8 members of the outgoing National 
Assembly or the Senate or both, having equal representation from 
the Treasury and the Opposition, to be nominated by the Prime 
Minister and the Leader of the Opposition, respectively. The 
Committee shall finalize the name of the care-taker Prime Minister 
within 3 days of the referral of the matter to it. If committee is 
unable to finalize the name of care-taker Prime Minister within 3 
days of the referral, the name of the nominee shall be referred to the 
Election Commission for final decision within two days. 
 
29. 
 
Although, the President of Pakistan has to appoint the 
care-taker Prime Minister but by Constitution (Eighteenth & 
Twentieth) Amendments, now he is only a symbolic appointing 
authority with no discretion, but to appoint the person nominated 
by the outgoing Prime Minister and the Leader of the Opposition as 
care-taker Prime Minister within 3 days of the dissolution of 
National Assembly and if they do not agree then by the Committee 
comprising 8 Members of the outgoing National Assembly or the 
Senate or by the Election Commission, as the case may be, as in the 
matter of appointment of Judges of the Superior Courts.     
 
30. 
 
The Chairman of Public Service Commission and Chiefs 
of Armed Forces now by Constitution (Seventeenth) Amendment 
are to be appointed by the President on the advice of the Prime 
Minister instead of “in his discretion”. 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
29 
31. 
 
From the perusal of different Articles referred to above 
for appointments of various constitutional offices, by the President 
in the matter of appointment of Chairman, Public Service 
Commission, Chiefs of Armed Forces, it appears that the President 
has to act on the advice of Prime Minister and he may require the 
Prime Minister to re-consider such advice whereas, in the matter of 
appointment of Judges in the Superior Courts; Chief Election 
Commissioner and Members of the Commission; and care-taker 
Prime Minister, the advice of Prime Minister is not required and 
after the nomination of name for appointment, by the Committee, 
the President has no discretion except to appoint the nominee.  
 
32. 
 
We would like to mention here that the Azam Jammu & 
Kashmir Interim Constitution Act, 1974 provides that a Judge of the 
Supreme Court or High Court shall be appointed by the President 
on the advice of a Council after consultation with the Chief Justice of 
the Azad Jammu & Kashmir. The Prime Minister or the person 
nominated by him is one of the members of the council alongwith 
six members to be elected by the Assembly, including five members 
nominated by the Prime Minister of Pakistan and others. In the case 
of Muhammad Younas Tahir and another vs. Shaukat Aziz, 
Advocate, Muzaffarabad and others (PLD 2010 SC AJK 42) while 
dealing with question whether advice of Prime Minister is required 
while appointing Judges of superior courts it was held that since a 
Judge in the Supreme Court is appointed by the President on the 
advice of the “Council” and after consultation with the Chief Justice 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
30 
of Azad Jammu & Kashmir and the Chief Justice of the High Court 
the advice of Prime Minister is not relevant for the purpose of 
appointment of judges. 
 
33. 
 
The Constitution, being a living organ for all times is to 
be interpreted dynamically, as a whole, to give harmonious meaning 
to every Article of the Constitution.  
 
34. 
 
The function of the Court, while interpreting the statute, 
is to discover the true legislative intent. Having ascertained the 
intention, the Court must strive to interpret the statute as to 
promote/advance the object and purpose of the enactment. For this 
purpose, where necessary, the Court may even depart from the rules 
that plain words should be interpreted according to their plain 
meaning. The Constitution was framed by its Framers, keeping in 
view the situations and conditions prevailing at the time of its 
making, but being an organic document it has been conceived in a 
manner so as to apply to the situations and conditions which might 
arise in the future. The words and expressions used in the 
Constitution, in that sense, have no fixed meaning and must receive 
interpretation based on the experience of the people in the course of 
working of the Constitution.  
 
35. 
 
The general principle of interpretation of statutes is 
equally applicable while interpreting any provision of the 
Constitution. However, while interpreting a provision of the 
Constitution, great caution has to be taken by the Court, as the 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
31 
Constitution is supreme law, which creates the Legislature itself 
which makes ordinary law and statutes with respect to which 
canons of statutory interpretation have been formulated by the 
Courts. The task of expounding a Constitution is crucially different 
from that of construing a statute. An ordinary statute can easily be 
enacted or repealed by a simple majority of the Members of the 
Parliament, whereas any provision of the Constitution can be 
amended only by 2/3rd majority of both the Houses.      
 
36. 
 
In the case of Munir Hussain Bhatti v. Federation of 
Pakistan (PLD 2011 Supreme Court 407), this Court held that the 
Parliamentary Committee under Article 175A of the Constitution 
cannot be equated with the Parliament nor can it be treated as a sub-
set of the Parliament in the manner in which a Parliamentary 
Committee elected and answerable to the Parliament can be 
considered to be part of the Parliament. The role of the 
Parliamentary Committee has been dealt with in detail in the said 
judgment and the Review Petition filed there-against by the 
Federation of Pakistan. We would like to reproduce hereinbelow 
paras 15 and 16 of the judgment, under review, dated 24.04.2011:- 
“15. 
Let me say at once that the Committee has and can 
exercise the powers which under the earlier dispensation were 
exercisable by the Prime Minister. We have specifically held 
that “[t]he role which they [the Prime Minister and President] were 
performing in the previous legal set up … is now logically to be 
performed by the Committee”. Therefore, if the Prime Minister’s 
role in the previous appointment mechanism was not 
considered to be meaningless, we fail to see how the 
Committee, charged with performing the same role, can be 
considered redundant. That the Committee is only an 
“institutionalized forum” for performing the functions which 
were previously the domain and province of the Prime 
Minister is made clear in our judgment more than once. This 
can be further buttressed if one considers the speeches of Mr. 
Raza Rabbani, Chairman of the Parliamentary Committee on 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
32 
Constitutional Reform (PCCR), on the floor of Parliament at 
the time the 18th Amendment bill was being debated. On 
6.4.2010, for instance, with the object of convincing the 
members of the National Assembly to approve Article 175A, 
Mr. Rabbani said, “in actual fact what is happening is that the 
functions that were being performed by the Prime Minister in terms 
of the present [pre amendment] system of appointment of Judges 
would be taken over by this Parliamentary Committee”. The very 
same intention was repeated six days later on the floor of the 
Senate on 12.4.2010 when Mr. Rabbani, with the same clarity 
of expression and intent stated that “what in actual fact has been 
done here [in Article 175A] is, that the role that was assigned to the 
Prime Minister in terms of appointment of Judges … has now been 
assigned to this Parliamentary Committee”.   
 
16. 
It may be noted here that Mr. Raza Rabbani was not 
just any member of Parliament making any odd speech on the 
floor of the Houses of Parliament to put forward his own 
point of view. He was the Chairman of the PCCR. It was he 
who was steering the Constitutional amendments through 
Parliament. We can presume that within the PCCR, comprised 
of 27 members, there would have been discussion and 
divergent points of view on Article 175A before it was given 
the shape it finally took in the 18th Amendment. These 
divergent views were sorted out which resulted in the view 
expressed by Mr. Rabbani while explaining the function of the 
Committee. It has not been suggested and, in any event, there 
would be no warrant for the premise that the intent of 
Parliament was anything different from what was stated by 
Mr. Rabbani in Parliament, in the solemn proceedings 
effecting important provisions of the Constitution. It would, 
therefore, be reasonable to rely on Mr. Raza Rabbani, as 
providing evidence of Parliamentary intent. It is such intent 
after all, which we are engaged in ascertaining and in this 
effort we are immeasurably benefited by what Mr. Rabbani 
said. We have already commented on the relevance of 
Parliamentary proceedings as an aid to interpretation of 
statutory text. While considering the domain and functions of 
the Committee we should also note that Mr. Rabbani was 
unambiguous in informing Parliament that the members of 
the PCCR “were also mindful of the fact that the manner in which 
the trichotomy of power has been defined in that [Sindh High Court 
Bar Association] judgment, the balance of that should not be upset”. 
Our judgment under review has ensured that this balance is 
maintained.”   
 
37. 
 
The President of India under Article 143 of Constitution 
of India, sought the opinion of the Indian Supreme Court as to 
whether the expression "consultation with the Chief Justice of India" 
in Articles 217(1) and 222(1) requires consultation with a plurality of 
Judges in the formation of opinion of the Chief Justice of India or 
does the sole individual opinion of the Chief Justice of India 
constitute consultation within the meaning of the said Articles. It 
gave its opinion as under:- 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
33 
“19. It is, we think, reasonable to expect that the collegiums 
would make its recommendations based on a consensus. 
Should that not happen, it must be remembered that no one can 
be appointed to the Supreme Court unless his appointment is in 
conformity with the opinion of the Chief Justice of India. The 
question that remains is:  what is the position when the Chief 
Justice of India is in a minority and the majority of the 
collegiums disfavor the appointment of a particular person? 
The  majority  judgment  in  the  second Judges case has said 
that if "the final opinion of the Chief Justice of India is contrary 
to the  opinion  of  the  senior Judges consulted by the Chief 
Justice of India and the senior Judges are of the view that the 
recommendee is unsuitable for stated reason, which are 
accepted by the President, then the non-appointment of the 
candidate  recommended  by  the Chief Justice of India would 
be permissible". This if the majority of the collegiums is against 
the appointment of a particular person, that person shall not be 
appointed, and we think that this is what must invariably 
happen.  We hasten to add that we cannot easily visualize a 
contingency of this nature; we have little doubt that if even two 
of the Judges forming the collegiums express strong views, for 
good reasons, that are adverse to the appointment of a 
particular person the Chief Justice of India would not press for 
such appointment. 
 
20. 
The majority judgment in the second Judges case 
contemplates the non-appointment of a person recommended 
on the ground of unsuitability. It says that such non-
appointment "must be for good reasons, disclosed to the Chief 
Justice of India to enable him to reconsider and withdraw his 
recommendation on those considerations. If the Chief Justice of 
India 
does 
not 
find 
it 
necessary 
to 
withdraw 
his 
recommendation even thereafter, but the other Judges of the 
Supreme Court who have been consulted in the matter are of 
the view that it ought to be withdrawn, the non-appointment of 
that person for reasons to be recorded, may be permissible in 
the public interest.......... However, if after due consideration of 
the reasons disclosed to  the Chief Justice of  India,  that 
recommendation is reiterated by the Chief Justice of India with 
the unanimous agreement of the Judges of the Supreme Court 
consulted in the matter, with reasons for not withdrawing the 
recommendation, then that appointment as a matter of healthy 
convention ought to be made". It may be that one or more 
members 
of 
the 
collegium 
that 
made 
a 
particular 
recommendation have retired or are otherwise unavailable 
when reasons are disclosed to the Chief Justice of India for the 
non-appointment of that person. In such a situation the reasons 
must be placed before the remaining members of the original 
collegium plus another Judge or Judges who have reached the 
required seniority and become one of the first four puisne 
Judges. It is for this collegium, so re-constituted, to consider 
whether the recommendation should be withdrawn or 
reiterated. It is only if it is unanimously reiterated that the 
appointment must be made. Having regard to the objective of 
securing the best available men for the Supreme Court, it is 
imperative that the number of Judges of the Supreme Court 
who consider the reasons for non-appointment should be as 
large 
as 
the 
number 
that 
had 
made 
the particular 
recommendation (AIR 1999 Supreme Court 1). 
 
38. 
 
The Parliament, keeping in view the principle laid 
down by this Court in Al-Jehad Trust case (i.e. the opinion of the 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
34 
Chief Justice of Pakistan, being pater-familias about suitability of a 
candidate’s ability, legal competency and integrity deserves due 
deference and that the President/Executive should give justicable 
reasons, which could be juxtaposed with the reasons of the Chief 
Justice, if the opinion of the Chief Justice of Pakistan is ignored) and 
the principle laid down by Supreme Court of India that instead of 
nomination by Chief Justice of India, the nomination will be made 
by the collegiums of Judges with majority, amended the process of 
appointment, by constituting a Commission having members from 
the Judiciary, Bars and the Executive to nominate one person each 
for each vacancy of a Judge in the Supreme Court, High Courts or 
the Federal Shariat Court, as the case may be, by majority of its 
members. Now instead of the President/Executive, under the old 
dispensation, the Parliamentary Committee either confirm the 
nomination by a majority of its total membership within fourteen 
days on receipt of a nomination from the Commission, failing which 
the nomination shall be deemed to have been confirmed or for 
justifiable reasons, to be recorded, may not confirm the nomination 
by a three-fourth majority of its total membership within fourteen 
days.    
 
39. 
 
In the case of Al-Jehad Trust v. Federation of Pakistan 
(PLD 1997 Supreme Court 84) [Reference No.2 of 1996, filed by the 
President of Pakistan], it was held that if the Prime Minister within the 
time-frame fixed in the judgment of this Court fails to tender his 
advice, he or she, shall be deemed to have agreed to the 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
35 
recommendations of the Chief Justice of Pakistan and the Chief 
Justice of Provincial High Court, as the case may be, and the 
President may proceed to make the final appointment on that basis. 
Keeping in view the authoritative decision given by this Court in the 
said case, the Constitution Framers by Clause 12 of Article 175A of 
the Constitution provided that if the Parliamentary Committee on 
receipt of a nomination from the Commission fails to confirm the 
nominee or to record reasons for not confirming the same by three-
fourth majority of its total membership within said period, the 
nomination shall be deemed to have been confirmed. Clause 12 of 
Article 175A of the Constitution read with the law laid down in the 
cases of Munir Hussain Bhatti and Al-Jehad Trust leaves no room of 
doubt that the advice of the Prime Minister for the appointment of 
Judges of the superior Courts, which was binding upon the 
President under Article 48(1) of the Constitution, is now conferred 
upon the Committee and it is for this reason that Clause 13 of Article 
175A of the Constitution provided that the Prime Minister shall 
forward the nominee confirmed by the Committee to the President 
of Pakistan for appointment. It does not require that the Prime 
Minister shall then advice the President for appointment.   
 
40. 
 
To 
appreciate 
the 
proposition, 
it 
would 
be 
advantageous to reproduce hereinbelow the definition of the word 
“forward” as defined in ‘The Concise Oxford Dictionary (Ninth 
Edition), which is the foremost authority on current English 
Language:- 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
36 
Onward so as to make progress (not getting any further 
forward); send (letter etc.) on to a further destination.   
 
41. 
 
From a bare reading of Clause 13 of Article 175A of the 
Constitution, it appears that the Committee, if confirms the name of 
a nominee of the Commission or the same is deemed to have been 
confirmed by it, the Prime Minister is left with no discretion but to 
forward the same to the President of Pakistan for appointment. The 
Prime Minister after confirmation of the name of the nominee by the 
Committee is not required to advice the President, under Article 48 
of the Constitution or vice versa since no advice is given by the 
Prime Minister to return the same for reconsideration.  
 
42. 
 
The role of the Prime Minister and the President of 
Pakistan in the appointment of Judges of the superior Courts is 
nothing but ministerial, and after receiving the nominations from 
the Committee the Prime Minister and the President have no 
discretion but to forward/appoint the nominees.  
43. 
 
If 
Article 
175A 
alongwith 
the 
Scheme 
of 
the 
Constitution, keeping in view its Preamble, which refers to an 
independent judiciary as well as Article 175(3) of the Constitution, 
which aims to separate the Judiciary from the Executive, is 
examined, it will lead to an irresistible conclusion that the role of the 
Executive in the appointment process of the Judges of the Superior 
Courts has become more-or-less ministerial and the entire process of 
appointment revolves around two bodies, created by/under the 
Constitution i.e. the Judicial Commission and the Parliamentary 
Committee.  
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
37 
44. 
 
Neither the learned Sr.ASC for the Referring Authority 
nor the learned Attorney General for Pakistan pointed out that the 
method of selecting Judges by the Commission in its meetings dated 
27.09.2012 & 22.10.2012 and by the Committee thereafter was 
violative of Articles 177(2) or 193(2) of the Constitution or any 
provision of the Constitution. The questions are answered in above 
terms.   
 
45. 
 
Now we would revert to question No.(i), to give my 
opinion on the same, which for convenience sake is reproduced 
hereinbelow:- 
(i).  
Whether in view of the decision by the Chief Justice of the 
IHC that Mr. Justice Riaz was the senior most judge of the 
IHC, which decision of the Chief Justice was also confirmed 
by the President of Pakistan, Mr. Justice Kasi could be 
treated as most senior Judge of the IHC? 
 
46. 
 
Mr. Justice Riaz Ahmad Khan was born on 15.05.1952. 
He qualified C.S.S. Examination in the year 1977 and joined Civil 
Services Academy Lahore. At the time, when he was posted at 
Peshawar, the PCS (Judiciary) Exam was announced in Khyber 
Pakhtunkhwa (the then NWFP) and he participated in the said 
examination and qualified the same. On his request, his services 
were transferred from Federal Government to the Provincial 
Government of Khyber Pakhtunkhwa and was posted as Civil Judge 
at Kohat, Haripur, and Peshawar and lastly as Senior Civil Judge at 
D.I. Khan. He resigned from the said post and started practicing law. 
He was elevated to the Bench on 04.1.2011 as an Additional Judge of 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
38 
Islamabad High Court, Islamabad and was confirmed on 21.11.2011 
as a Judge of the said High Court. 
 
47. 
 
Conversely, Mr. Justice Muhammad Anwar Khan Kasi 
was born on 28.11.1956. He was enrolled as an Advocate in 1982 and 
joined the Judicial Service of Balochistan as a Civil Judge in May, 
1986. He was appointed as an Additional District and Sessions Judge 
in 1991 and as a District and Sessions Judge in 1997. He was elevated 
as an Additional Judge of Islamabad High Court, Islamabad on 
04.01.2011 and was confirmed as a Judge of the said High Court on 
21.11.2011.  
 
48. 
 
Both the learned Judges were appointed through the 
same Notification, issued by the Ministry of Law, Justice & 
Parliamentary Affairs, Government of Pakistan, Islamabad, wherein 
the name of Mr. Justice Muhammad Anwar Khan Kasi appeared at 
Sr.No.1, whereas the name of Mr. Justice Riaz Ahmed Khan 
appeared at Sr.No.2. The Hon’ble Chief Justice of Islamabad High 
Court, Islamabad, while fixing their seniority, vide his order dated 
22.12.2011 treated Mr. Justice Riaz Ahmad Khan, being elder in age, 
as senior to Mr. Justice Muhammad Anwar Khan Kasi. Mr. Justice 
Muhammad Anwar Khan Kasi made a representation to the Chief 
Justice 
of 
Islamabad 
High 
Court, 
Islamabad, 
against 
the 
determination of his seniority, which was forwarded to the Secretary 
Ministry of Law, because the appointment notification issued by the 
said Ministry had placed the name of Mr. Justice Muhammad 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
39 
Anwar Khan Kasi at a senior serial number of the notification, to 
resolve the dispute of inter se seniority at the earliest. The President 
of Pakistan decided the representation and declared Mr. Justice Riaz 
Ahmad Khan senior to Mr. Justice Muhammad Anwar Khan Kasi in 
the seniority of the Judges of Islamabad High Court, Islamabad.  
 
49. 
 
The letter No.F.12(5)/86-Add, dated 30.04.1987, issued 
by the Ministry of Law for the purpose of laying down the principle 
for inter se seniority of the Judges appointed on the same day, is 
nothing more than an equitable principle consistently adopted but is 
not backed by any provision of the Constitution or law. However, 
the convention of inter se seniority of a Judge is on the basis of 
‘senior in age’, which by passage of time has become convention and 
ought to have been respected. We would like to reproduce 
hereinbelow the letter dated 30.04.1087:- 
“No.F.12(5)/87-AII 
 
 
Dated 30.04.1987. 
 
GOVERNMENT OF PAKISTAN 
MINISTRY OF JUSTICE AND PARLIAMENTARY AFFAIRS 
(JUSTICE DIVISION) 
 
Subject:- 
SENIORITY LIST OF HIGH COURT JUDGES 
 
My dear Chief Justice, 
 
 
Please refer to the correspondence resting with High 
Court of Sindh letter No.Gaz-IV, Z, 14(i) dated the 30th March, 
1987, on the subject noted above. 
 
2. 
An equitable principle consistently adopted in this 
regard is that Judges whose appointments are made by a single 
order take seniority according to age. If the appointment of two 
or more service candidates is also simultaneously made with 
that of candidate from the Bar, the service Judges will retain 
their existing seniority in the department regardless of their age 
which of course would be the determining factor in respect of 
their seniority vis-à-vis candidates from the Bar. This principle 
has the approval of the President.  
 
3. 
I am to request you to please confirm whether the 
seniority list of Sindh High Court Judges has been prepared in 
the light of the above principle. 
 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
40 
 
With kind regards.  
Yours sincerely, 
Sd/- 
(Irshad Hussain Khan)” 
 
50. 
 
We have gone through various seniority lists of the 
Judges of the superior 
Courts and notifications of their 
appointments which leave no room for doubt that the recognized 
principle for determining seniority amongst the Judges of High 
Courts appointed 
on the same day irrespective of their 
appointments from Subordinate Judiciary or Bars, is the seniority in 
age, and the Law Secretary who issues the notifications of 
appointment has no lawful authority to determine the same nor 
does the serial-wise appearance of names in the notification have 
any nexus with the determination of seniority. We would like to 
reproduce hereinbelow, as illustration, some of the notifications, 
issued by Ministry of Law, Justice & Parliamentary Affairs, 
Government of Pakistan, Islamabad and seniorities as determined 
by the High Courts:-   
“As shown in the Notification, dated 
14.09.2009, issued by Ministry of 
Law, Justice & Parliamentary Affairs, 
Government of Pakistan, Islamabad:- 
As placed in the seniority list, prepared by the 
Lahore High Court, according to their dates of 
birth:- 
 
 
Mr. 
Justice 
Sagheer 
Ahmed 
Qadri.  
 
 
02.12.1951 
Mr. Justice Nasir Saeed Sheikh. 
12.12.1951 
Mr. Justice Sh. Najam ul Hassan 
15.03.1952 
Mr. Justice Kh. Imtiaz Ahmed. 
30.03.1953 
Mr. 
Justice 
Manzoor 
Ahmed 
Malik 
01.05.1956 
Mr. Justice Sardar Tariq Masood 
11.03.1959 
Mr. Justice Ijaz ul Ahsan 
05.08.1960 
 
1. 
Syed Mansoor Ali Shah.  
2. 
Sh. Najam ul Hassan.  
3. 
Mr. Manzoor Ahmad Malik.  
4. 
Mr. Asad Munir. 
5. 
Mr. Ijaz ul Ahsan.  
6. 
Hafiz Abdul Rehman Ansari.  
7. 
Sardar Tariq Masood. 
8. 
Mr. Tariq Javaid. 
9. 
Mr. Nasir Saeed Sheikh. 
10. 
Mr. Mansoor Akbar Kokab.  
11. 
Khawaja Imtiaz Ahmad. 
12. 
Mr. Sagheer Ahmad Qadri. 
 
 
Mr. Justice Syed Mansoor Ali 
Shah 
 
28.11.1962 
As shown in the Notification, dated 
11.05.2011, issued by Ministry of 
Law, Justice & Parliamentary Affairs, 
Government of Pakistan, Islamabad:- 
As placed in the seniority list, prepared by the 
Lahore High Court, according to their dates of 
birth:- 
 
 
Mr. Justice Altaf Ibrahim Qureshi  
 
06.03.1953 
Mr. Justice Abdus Sattar Asghar  
20.03.1953 
Mr. Justice Mehmood Maqbool 
Bajwa 
27.09.1954 
 
 
1. 
Syed Kazim Raza Shamsi.  
2. 
Mr. Abdul Waheed Khan.  
3. 
Syed Iftikhar Hussain Shah.  
4. 
Mr. Abdus Sattar Asghar.  
Mr. Justice Amin-ud-Din Khan 
01.12.1960 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
41 
Mr. Justice Muhammad Ameer 
Bhatti 
08.03.1962 
Mr. 
Justice 
Ch. 
Muhammad 
Younas  
16.09.1951 
Mr. Justice Iftikhar Hussain Shah 
01.04.1953 
Mr. Justice Syed Muhammad 
Kazim Raza Shamsi 
06.09.1956 
5. 
Ch. Muhammad Younas.  
6. 
Mr. Mehmood Maqbool Bajwa.  
7. 
Syed Ijaz Hussain Shah.  
8. 
Mr. Ameen-ud-Din Khan.   
9. 
Mr. Muhammad Ameer Bhatti.  
10. Mr. Altaf Ibrahim Qureshi.  
11. Malik Shahzad Ahmad Khan. 
 
Mr. 
Justice 
Malik 
Shahzad 
Ahmed Khan 
15.03.1963 
 
As shown in the Notification, dated 
24.10.2005, issued by Ministry of Law, 
Justice 
& 
Parliamentary 
Affairs, 
Government of Pakistan, Islamabad:- 
As placed in the seniority list, prepared by 
the High Court of Sindh, according to their 
dates of birth:- 
 
 
Mr. Justice Shamsuddin 
Hisbani 
 
01.12.1946 
Mr. Justice Munib Ahmed 
Khan 
08.05.1949 
Mr. Justice Muhammad 
Athar Saeed 
29.09.1949 
Justice Mrs. Yasmeen 
Abbasey 
05.01.1950 
Justice Mrs. Qaiser Iqbal 
13.12.1949 
Mr. Justice Ali Sain Dino 
Metlo 
01.03.1950 
Mr. Justice Faisal Arab 
05.11.1955 
Mr. Justice Sajjad Ali Shah 
14.08.1957 
 
 
 
1. 
Mr. Justice Munib Ahmed Khan 
2. 
Mr. Justice Muhammad Athar 
Saeed 
3. 
Mr. Justice Faisal Arab 
4. 
Mr. Justice Sajjad Ali Shah 
5. 
Mr. Justice Nadeem Azhar Siddiqui 
6. 
Mr. Justice Shamsuddin Hisbani 
7. 
Justice Mrs. Yasmeen Abbasey 
8. 
Justice Mrs. Qaiser Iqbal 
9. 
Mr. Justice Ali Sain Dino Metlo 
 
Mr. Justice Nadeem Azhar 
Siddiqui 
22.01.1959 
As shown in the Notification, dated 
24.09.2009, issued by Ministry of Law, 
Justice 
& 
Parliamentary 
Affairs, 
Government of Pakistan, Islamabad:- 
As placed in the seniority list, prepared by 
the High Court of Sindh, according to their 
dates of birth:- 
 
Mr. 
Justice 
Bhajandas 
Tejwani  
01.01.1950 
Mr. Justice Shahid Anwar 
Bajwa 
05.10.1950 
Mr. Justice Ali Bin Adam 
Jaffery 
14.01.1952 
Mr. Justice Ghulam Sarwar 
Kurai 
05.04.1952 
Justice Ms. Rukhsana Ahmed 
Malik 
15.04.1957 
Mr. Justice Tufail H. Ibraim 
10.05.1958 
Mr. 
Justice 
Ahmed 
Ali 
Sheikh 
03.10.1961 
Mr. Justice Irfan Saadat Khan 
07.02.1963 
Mr. Justice Aqeel Ahmed 
Abbasi 
16.06.1963 
 
 
 
1. 
Mr. Justice Shahid Anwar Bajwa 
2. 
Justice Ms. Rukhsana Ahmed Malik 
3. 
Mr. Justice Ghulam Sarwar Kurai 
4. 
Mr. Justice Ahmed Ali Sheikh 
5. 
Mr. Justice Ali Bin Adam Jaffery 
6. 
Mr. Justice Bhajandas Tejwani 
7. 
Mr. Justice Irfan Saadat Khan 
8. 
Mr. Justice Aqeel Ahmed Abbasi 
9. 
Mr. Justice Muneeb Akhtar 
10. Mr. Justice Tufail H. Ibrahim 
Mr. Justice Muneeb Akhtar 
14.12.1963” 
 
 
51. 
 
Likewise neither the Constitution nor any law 
authorizes the President of Pakistan, who is a symbolic appointing 
authority, to decide the inter se seniority of Judges, which even 
otherwise is not only against the principles of Independence of 
Judiciary but also violative of Article 175(3) of the Constitution, 
which provides for separation of the Judiciary from the Executive.   
 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
42 
52. 
 
Like the Supreme Judicial Council, a forum created by 
the Constitution, as held “not a Court” in case of Chief Justice of 
Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan 
(PLD 2010 Supreme Court 61), the Judicial Commission is also 
created by the Constitution and cannot be given the status of a Court 
to decide the issue of inter se seniority between two persons. The 
Commission, which is assigned the function of nominating the 
names of the candidates for appointment of Chief Justices of High 
Courts and the Judges of superior Courts by taking in consideration 
their legal competency etc, who meet the minimum qualification 
provided by Articles 177(2) and 193(2) of the Constitution has no 
mandate to decide the inter se seniority of Judges. Anyone, if 
aggrieved, by the determination of his seniority by the Chief Justice 
of the High Court and or by the Chief Justice of Pakistan being 
paterfamilias in the absence of rules, can seek remedy from the 
Court of competent jurisdiction. However, in the absence of specific 
guideline it is expected from the constitutional functionaries to 
regulate the exercise of their discretionary power in the matter as 
per norms emerging from the actual practice and convention, and 
legitimate expectancies.    
 
53. 
 
Since no rules have been framed for determining the 
inter se seniority of Judges in superior Courts appointed on same 
day, we endeavor to draw out a criterion of inter se seniority from 
the example of a neighboring country.  
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
43 
54. 
 
According to the seniority norm in India, a judge (X) is 
considered to be senior to another judge (Y) if X was appointed to 
the court prior in time to Y. The presumption here is that both X and 
Y are appointed to the same court. If, say, X is appointed to the 
Bombay High Court, and then Y is appointed to the Calcutta High 
Court, it's not entirely clear if X is senior to Y. So let's assume that X 
and Y are both appointed to the Bombay High Court. What if they 
are appointed on the same date? If one of them is a lawyer being 
appointed to the court, and another is a subordinate court judge, the 
lawyer is considered senior to the subordinate judge, though they're 
appointed on the same date. This is entirely based on convention, 
however, at one point it was not - the Indian High Courts Act, 1861, 
said that "Judges of each High Court shall have Rank and 
Precedence according to the Seniority of their appointments". This 
provision was also seen in the Government of India Act, 1915, and in 
the Government of India Act, 1935.  
 
55. 
 
Interestingly, in the U.S. Supreme Court as well as in 
Pakistan, associate justices have "precedence according to the 
seniority of their commissions", and then according to age if they're 
appointed on the same date; the same rule applies to US federal 
circuit court Judges.  
 
56. 
 
Though it is not relevant for the purposes of giving 
opinion on the questions referred to, but time has come to avoid 
such an unpleasant situation in the future, instead of relying upon 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
44 
the opinion of Law Secretary given in the year 1987 rules should be 
framed by the superior Courts as to what should be the criteria for 
inter se seniority between (a) Judges appointed on the same day?; (b) 
A lawyer and a Judge from the District Service? Should it be date of 
appointment, age or date of registration as an advocate.   
 
57. 
 
To record our opinion on question Nos.(ii); (iii); and (x), 
the same are reproduced hereinbelow:- 
 
 
 
(ii) 
Whether Mr. Justice Riaz had a legitimate expectancy to be 
appointed as Chief Justice of the IHC on the ground that he 
was the most senior Judge of that Court in the light of the 
judgment of the Supreme Court in the Al-Jehad case 
referred to above; 
 
(iii) 
Whether the JCP acted in accordance with the Constitution 
and conventions thereof in recommending a junior Judge as 
Chief Justice of the IHC; and 
 
(x) 
What should be the criteria for elevating a Judge/Chief 
Justice of the High Court to the Supreme Court? Is it, their 
seniority inter-se as Judge of the High Court or their 
seniority inter-se as Chief Justice of respective High Court 
be the consideration for elevation to the Supreme Court? 
 
58. 
 
The Hon’ble Chief Justice of Pakistan initiated the name 
of Mr. Justice Iqbal Hameed-ur-Rahman, the Chief Justice of 
Islamabad High Court, Islamabad, for appointment as a Judge of 
this Court, in terms of Rule 3(1) of the Judicial Commission of 
Pakistan Rules, 2010 framed in exercise of powers conferred on the 
Commission by Clause 4 of Article 175A of the Constitution. After 
deliberation and taking into consideration various aspects of the 
matter including the criteria for elevation of a Judge in Supreme 
Court, he was nominated as a Judge of this Court. In another 
meeting, held on the same day, which was attended by Chief Justice 
of Islamabad High Court, Islamabad, the name of Mr. Justice 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
45 
Muhammad Anwar Khan Kasi was initiated for appointment as 
Chief Justice of the Islamabad High Court, Islamabad and after 
deliberation he was nominated for Chief Justice of Islamabad High 
Court, Islamabad and send the same to the Parliamentary 
Committee.  
 
59. 
 
The names of Mr. Justice Iqbal Hameed-ur-Rahman, as 
a Judge of this Court and Mr. Justice Muhammad Anwar Khan Kasi, 
as Chief Justice of Islamabad High Court, Islamabad, were 
confirmed by the Committee.  
 
60. 
 
As regards the legitimate expectancy of the most senior 
Judge to be appointed as Chief Justice of the High Court, in the case 
of Al-Jehad Trust (supra) it was held as under:-  
“Article 193 of the Constitution empowers the President of 
Pakistan to appoint the Chief Justice of the High Court. 
Apparently there is no constitutional requirement to appoint 
senior most Judge as Chief Justice of the High Court 
whenever permanent vacancy occurs in the High Court, but 
to secure the independence of Judiciary from the Executive, it 
is necessary to advert to the Constitutional convention which 
has developed by the continuous usage and practice over a 
long period of time. The Constitutional convention to appoint 
most Senior Judge of the High Court as a Chief Justice, had 
been consistently followed in the High Courts since before 
partition of the sub-continent. The senior most Judge has an 
edge over rest of the Judges of the High Court on the basis of 
his seniority and entertains a legitimate expectancy to be 
considered for appointment as Chief Justice against 
permanent vacancy of the office of the Chief Justice. 
Apparently there is wisdom in following the Constitutional 
convention of appointing most senior Judge of the High 
Court as permanent Chief Justice, otherwise a junior most 
Judge in the High Court may aspire to become Chief Justice 
of the High Court by bypassing his seniors and to achieve 
this object resort to undesirable conduct by going out of his 
way to oblige the Government in power. It he succeeds in 
securing his appointment as Chief Justice by superseding his 
seniors, by resorting to such measures he will endanger the 
independence of Judiciary and destroy the public confidence 
in the Judiciary. If a departure to follow the established 
convention of appointing the senior most Judge is to be 
made, the appointing authority should record reasons for not 
appointing most senior Judge as Chief Justice of the High 
Court. The complexion of the Institution is likely to be 
impaired by so doing.”   
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
46 
61. 
 
Having notice of the principles laid down by this Court 
in the case of Al-Jehad Trust (ibid) that the most senior Judge has the 
legitimate expectancy to be appointed as Chief Justice of the High 
Court, the Parliament in its wisdom, while making it mandatory that 
the most senior Judge of the Supreme Court will be appointed as the 
Chief Justice of Pakistan under Article 175A(3) of the Constitution, 
left the question of suitability for appointment of the Chief Justice of 
the High Court to be decided by the Judicial Commission, a forum 
created by the Constitution, having four most senior Judges of this 
Court alongwith the Chief Justice of Pakistan and Chief Justice of the 
concerned High Court with one vote each. The contention of the 
learned counsel that if the principles of seniority and legitimate 
expectancy linked therewith are ignored, it would give rise to the 
whim and caprice of the person initiating the name, which will affect 
the independence of the judiciary and its working. At first sight, it 
seems to have force, but on a careful perusal of Clause 5 of Article 
175A of the Constitution, it appears that the process of nomination 
by one person, prior to Constitution (Nineteenth) Amendment now 
vests in a body consisting of all stakeholders i.e. the Judiciary, the 
Representatives of Bars and the Executive. The four most senior 
Judges of this Court, the Chief Justice of the High Court, a retired 
Judge of Supreme Court, persons of integrity, who have first hand 
information about the administrative skill and other related matters, 
decide who is the most suitable person to be appointed as Chief 
Justice of the High Court. Knowing well the principles laid down by 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
47 
this Court in Al-Jehad Trust case, if the Commission decides to 
nominate someone other than the most senior Judge as Chief Justice, 
it may give cause to question before an adjudicatory forum, and the 
issue may be decided there, but not in this (Reference) jurisdiction.  
 
62. 
 
In the Budget Reference (PLD 1989 Supreme Court 85), 
this Court said “it cannot in this (reference) jurisdiction decide the 
matter as a lis between the parties, wherein exercise of other powers 
is available to the Court including discretionary and taking other 
consequential actions”. But on this count nomination cannot be 
termed as violative of the Constitution.  
 
63. 
 
We may mention here that after Al-Jehad Trust case 
and even after Constitution (Nineteenth) Amendment, the President 
of Pakistan appointed the Chief Justices of Lahore and Peshawar 
High Court, who were not the most senior Judges of that Courts. 
 
64. 
 
The Constitution is an organic law which creates the 
very Legislature which makes ordinary statutes.   
 
65. 
 
Prior to the Constitution (Nineteenth) Amendment, the 
Chief Justice of Pakistan being the head of the judiciary nominates a 
candidate for the post of Chief Justice of the High Court or Judges of 
the Superior Courts. The “ability, competency, knowledge and 
suitability” of the nominee were held to be determined by the Chief 
Justice of Pakistan being pater familias, his view deserved due 
deference, which power now is exercised by the Judicial 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
48 
Commission consisting of Senior Judges, including Chief Justice of 
the High Court, Representative of Bar, Attorney General for 
Pakistan and the Law Minister. The power to appoint a Judge of the 
superior Courts was initially vested in the Chief Justice of Pakistan 
prior to Constitution (Nineteenth) Amendment, which then 
devolved upon the Judicial Commission. As held in the case of 
Munir Hussain Bhatti, (supra) that the principle laid down in the 
authoritative decision of Al-Jehad Trust case is still applicable. In the 
said case, it was held that in the matter of Judges the “satisfaction” 
of the Chief Justice of Pakistan (now Judicial Commission of 
Pakistan) is “subjective” and that such satisfaction is not subject to 
judicial review. In the case of Ghulam Hyder Lakho v. Federation of 
Pakistan (PLD 2000 Supreme Court 179), it was held that 
satisfaction of the Chief Justice of Pakistan is “subjective” and was 
not justifiable. This view was again reaffirmed in the case of 
Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 
Supreme Court 939). 
 
66. 
 
Although minutes of meeting of Judicial Commission 
have been placed on record by referring authority. We are not taking 
note of it nor making any comments on it for the reason that 
satisfaction of the Chief Justice of Pakistan prior to 19th 
Constitutional Amendment and of Judicial Commission now is 
“subjective” as held in the cases of Al-Jehad Trust, Ghulam Hyder 
Lakho and Munir Ahmed Bhatti and not open to judicial review. 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
49 
67. 
 
In this view of the matter, when this Court, time and 
again, by authoritative decisions held that the “satisfaction” in the 
appointment of Judges of the superior Courts including the Chief 
Justice of the High Court is “subjective” and not open to Judicial 
Review, the question of nomination by the Commission and 
confirmation by the Committee of a Judge who is not the most 
senior Judge of that Court as Chief Justice of High Court, cannot be 
answered in advisory jurisdiction and may be adjudicated upon in 
other jurisdiction. Although the practice of appointment of a Judge 
other than most senior Judge is against the convention and may not 
be in the interest of the judiciary, however, the appointment of a 
Judge not most senior as Chief Justice of the High Court cannot be 
termed as violative of the Constitution.  
 
68. 
 
Proviso to Sub clause 5 (iv) of Article 175A provided 
that for the appointment of a Chief Justice of the High Court the 
most senior Judge mentioned in paragraph (ii) shall not be a 
member of the Commission have wisdom in it. If it is supposed that 
the Judicial Commission decided to nominate most senior Judge of 
the High Court as a Chief Justice, it is not desirable that he should be 
a part of such nomination process being one of the interested parties 
and in case the Judicial Commission decided not to nominate the 
most senior Judge as the Chief Justice to avoid embarrassment to 
him because of his presence in the Commission, as various issues 
may be related to him come under discussion.  
 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
50 
69. 
 
In this view of the matter, the Advisory Jurisdiction of 
the Court is not suitable for such a determination, as the person 
whose rights are likely to be affected is not before us.  
 
70. 
 
When we analyze Clauses 3 and 5 of Article 175A 
alongwith Article 180 and 96 of the Constitution, it appears that the 
Constitution Framers made it mandatory under Clause 3 of Article 
175A that the most senior Judge of the Supreme Court shall be 
appointed as Chief Justice of Pakistan and during the absence of the 
Chief Justice of Pakistan, the most senior Judge of the Supreme 
Court shall be appointed as Acting Chief Justice of Pakistan, 
whereas in the case of Chief Justice of the High Court neither Clause 
5 of Article 175A nor Article 196 of the Constitution make it 
mandatory that in the case of a vacancy, the most senior Judge of the 
High Court will be appointed as Chief Justice of the High Court and 
in case of absence of the Chief Justice of the High Court, the most 
senior Judge of the High Court shall be appointed as Acting Chief 
Justice. 
 
71. 
 
It is a principle of legal policy that law should be altered 
deliberately rather than causally. When the Legislature provided 
two different modes of appointment of the Chief Justice of Supreme 
Court and the Chief Justice of the High Court, then so long as the 
Article of the Constitution is not amended or in adjudicatory 
jurisdiction, the Court has to follow the same criteria as in the case of 
the Chief Justice of Pakistan, the appointment of a Judge other than 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
51 
most senior Judge cannot be held, in Advisory Jurisdiction, against 
the Constitution.   
 
72. 
 
As regards the criteria for the appointment of a Judge of 
the Supreme Court, the Chief Justice of Pakistan, pater familias of 
the Judiciary, in terms of Rule 3 of the Judicial Commission of 
Pakistan Rules, 2010, initiates nomination of a Judge in the Supreme 
Court, keeping in view the number of sitting Judges from different 
High Courts and in this Court, work load of High Courts, their 
administrative difficulties and other related issues. The Supreme 
Court is the highest Court of Pakistan and its Judges should reflect 
the geographic diversity of Pakistan i.e. Judges are appointed to the 
Supreme Court by taking into account all the Provincial High Courts 
and Islamabad High Court. Justice Ahmadi while disagreeing with 
the majority view in second Judge case (AIR 1994 Supreme Court 
268) held that the seniority norm ought to be deviated from while 
appointing Judges to the Supreme Court of India in order to achieve 
a more representative course.  
 
73. 
 
The Judicial Commission consisting of four most senior 
Judges of this Court; a retired Judge of Supreme Court; a senior 
Advocate nominated by the Pakistan Bar Council; the Law Minister; 
and the Attorney General for Pakistan, after deliberations, in terms 
of Clause 8 of Article 175A, by majority decides whether to 
nominate or not to nominate the candidate whose name was 
initiated by the Chief Justice of Pakistan.    
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
52 
74. 
Generally, in interpreting statutes, it is presumed that the 
Legislature chooses its words carefully. Therefore, if a word or 
phrase has been added somewhere, such addition is not to be 
deemed redundant; conversely, if a word or phrase has been left out 
somewhere, such omission is not be deemed inconsequential. 
Instead, a change in language implies a change in intent. Maxwell, 
an authority on statutory interpretation remarks: “When precision is 
required, no safer rule can be followed than always to call the same thing by 
the same name.” (P.311, Maxwell on the Interpretation of Statures, 
Eleventh Edition, 1962) 
 
75 
 
In any case, we work on the understanding that the 
Parliament and its draftsmen are not so careless that they would, 
within the space of a single article, make such a fatal error. We owe 
the Legislature more deference that the Legislature is presumed to 
have chosen its words even more carefully in this case, since we are 
not talking of some obscure procedural statute over here; we are 
dealing with a document no less sacred than the Constitution itself.    
 
76 
 
Although due consideration of every legitimate 
expectation in the decision making process is a requirement of the 
rule of non-arbitrariness therefore, it is expected that this norm to be 
observed, while initiating the name in term of Rule 3 of Judicial 
Commission Rules, 2010 and then by the Judicial Commission. A 
three Member Bench of this Court in the case of Tariq Aziz-ud-Din: 
in re (2010 SCMR 1301) held as under:- 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
53 
“Suffice to observe as is pointed out hereinabove, as well, that 
posting a junior officer to hold the charge of a senior post, 
ignoring seniors who are eligible for promotion, does not 
advance the object of achieving good governance because the 
rules framed on the subject, noted hereinabove, are not 
redundant in any manner, therefore, same need to be 
respected and followed accordingly. It is a settled principle of 
law that object of good governance cannot be achieved by 
exercising discretionary powers unreasonably or arbitrarily 
and without application of mind but  objective can be 
achieved by following the rules of  justness, fairness and 
openness in consonance with the command of the 
Constitution enshrined in different articles including Articles 
4 and 25. Once it is accepted that the Constitution is the 
supreme law of the country, no room is left to allow any 
authority to make departure from any of its provisions or the 
law and the rules made thereunder. By virtue of Articles 4 
and 5 (2) of the Constitution, even the Chief Executive of the 
country is bound to obey the command of the Constitution 
and to act in accordance with law and decide the issues after 
application of mind with reasons as per law laid down by this 
Court in various pronouncements [Federation of Pakistan 
through Secretary, Establishment Division v. Tariq Pirzada 
(1999 SCMR 2744)]. It is also a settled law that even Chief 
Executive of the country is not above the Constitution [Ch. 
Zahur Ilahi v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383)]. It 
is the duty and obligation of the competent authority to 
consider the merit of all the eligible candidates while putting 
them in juxtaposition to find out the meritorious amongst 
them otherwise one of the organs of the State i.e. Executive 
could not survive as an independent organ which is the 
command of the Constitution. Expression ‘merit’ includes 
limitations prescribed under the law. Discretion is to be 
exercised according to rational reasons which means that; (a) 
there be finding of primary facts based on good evidence; and 
(b) decisions about facts be made for reasons which serve the 
purposes of statute in an intelligible and reasonable manner. 
Actions which do not meet these threshold requirements are 
considered arbitrary and misuse of power [Director Food, 
NWFP v. M/s Madina Flour and General Mills (Pvt) Ltd. 
(PLD 2001 SC 1)].  Equally, discretionary power conferred on 
Government should be exercised reasonably subject to 
existence of essential conditions, required for exercise of such 
power within the scope of law. All judicial, quasi judicial and 
administrative authorities must exercise power in reasonable 
manner and also must ensure justice as per spirit of law and 
seven instruments which have already been referred to above 
regarding exercise of discretion. The obligation to act fairly on 
H.R.C. No. 8340-G/2009 35 the part of the administrative 
authority has been evolved to ensure the rule of law and to 
prevent failure of justice Mansukhlal Vithaldas Chauhan v. 
State of Gujrat [1997 (7) SCC 622].” 
 
 
 
However, a perusal of Clause 3 of the Article 175A read 
in juxtaposition with Clause 5 of Article 175A alongwith its proviso 
indicates that instead of making it mandatory to appoint the most 
senior Judge as Chief Justice of the High Court, as provided in 
Clause 3 of Article 175A read with Rule 3 of the Judicial Commission 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
54 
of Pakistan Rules, 2010, the matter is left to the discretion of the 
Chief Justice of Pakistan to initiate the name for Chief Justice of the 
High Court and the Commission by majority of its total membership 
to nominate one person for said post. When the Constitution 
Framers in the case of the appointment of the Chief Justice of 
Pakistan made it mandatory that only the most senior Judge of 
Supreme Court shall be appointed as Chief Justice of Pakistan, it left 
room to appoint a person, who may not be the senior most Judge as 
Chief Justice of the High Court. Appointment of a Judge other than 
most senior Judge though may be violative of the convention and is 
not desirable, but cannot be termed as violative of the Constitution. 
However, it may give cause to the aggrieved person to seek remedy 
before the adjudicatory forum, and question can be answered in said 
jurisdiction. 
 
77.            
As regards question No.(iv) “Whether JCP was properly 
constituted as per provision of Article 175-A of the Constitution as Mr. 
Justice Kasi who participated in the meeting was not a Member thereof and 
was a stranger to the proceedings”. Mr. Justice Muhammad Anwar 
Khan Kasi attended the meeting of the Commission, dated 
22.10.2012. The Chief Justice of Islamabad High Court, Islamabad, 
initiated the names of Mr. Shaukat Aziz Siddiqui, as a Judge and Mr. 
Noor-ul-Haq N. Qureshi, as an Additional Judge [for a period of six 
months] of Islamabad High Court, Islamabad. For this reason, the 
notifications in respect of these learned Judges were not issued. The 
Commission after deliberations nominated the above named learned 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
55 
Judges by majority of 7 to 2. Even if it is accepted that Mr. Justice 
Muhammad Anwar Khan Kasi was not the most senior Judge of 
Islamabad High Court, Islamabad, and attended the meeting of the 
Commission, it is established from the record that on the date when 
the meeting of the Commission was called for the purpose of 
considering the appointment of three Additional Judges of the High 
Court, Mr. Justice Riaz Ahmad Khan was on ex-Pakistan Leave and 
the former (Mr. Justice Muhammad Anwar Khan Kasi) was the most 
senior Judge available of the said High Court. The terms “Chief 
Justice” and “Acting Chief Justice” have been defined by the 
Constitution, whereas the term “most senior Judge” has not been 
defined. However, even if it is accepted that Mr. Justice Muhammad 
Anwar Khan Kasi, was not eligible to sit in the meeting of the 
Commission, Clause 8 of Article 175A stipulates that the decision of 
the nomination of a person for any vacancy of a Judge of the 
superior Court is to be taken by the Commission, by majority of its 
total members and as such, his attending the said meeting does not 
vitiate the entire proceedings or makes the nomination invalid.  
 
78 
 
In the case of Managing Director, SSGC Ltd. v. Ghulam 
Abbas (PLD 2003 Supreme Court 724), it was held that:- 
“Perusal of subsection (1) of section 3-A of the Act, 1973 
reveals that “minimum strength of a Bench to exercise or 
perform functions of the Tribunal is two Members, including 
the Chairman,” meaning thereby that while conducting 
hearing, the status of a Chairman is also of a Member. 
Whereas under clause (a) of section 3-A(2), decisions are to 
be pronounced by the majority of the Members. Clause (b) of 
section 3-A (2) further provides that in case of division 
between Members of the Bench or in case of equal division of 
the Members, the case shall be referred to the Chairman and 
whatever opinion is expressed by him, would have 
supremacy and constitute the decision of the Tribunal. In 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
56 
this case impugned judgment has been authored by the 
Chairman and all the Members have concurred with him, 
therefore, presuming that Mr. Aftab Ahmed joined 
proceedings without lawful authority but nevertheless 
impugned judgment can sustain, as it has been rendered by 
the Bench comprising of more than two Members of the 
Service Tribunal and apprehension of influencing the 
judgment by Mr. Aftab Ahmed (Retired Member) stands 
excluded as it was authored by a former Judge of High Court 
being the Chairman of the Service Tribunal.  
 
 
In addition to above legal position, the impugned 
judgment can be treated to have been delivered validly 
under de facto doctrine.  
……………………………………………………………………… 
 
Thus endorsing the principles discussed in above 
paras, the impugned judgment is declared to have been 
passed validly because Mr. Aftab Ahmed immediately 
before his retirement had been performing same functions, 
therefore, it would be deemed that in exercise of same 
powers in good faith he associated himself in the 
proceedings.  
 
 
Besides above conclusion, the inclusion of Mr. Aftab 
Ahmed as a Member of the Bench, had also not caused 
prejudice to any of the parties because he has not authored 
the judgment nor there is any likelihood of his having 
influenced the judgment in any manner as it was authored 
by the Chairman and remaining two Members of the Bench 
had concurred with him. No useful purpose as such would 
be served by remanding the case to the Service Tribunal for 
fresh decision because dispute is lingering on between the 
parties for the last so many years, therefore, justice demands 
that now cases should be decided finally unless remand of 
the cases is inevitable under the circumstances of each case.” 
79. 
 
In the case of Muhammad Saleem and 12 others v. 
Secretary Prosecution, Government of Punjab, Lahore and another 
(2010 PLC (CS) 1), a three member Bench of the Lahore High Court, 
while dealing with the question that the committee which conducted 
the interviews of  the petitioners did not comprise all the four 
members, appointed by the Chief Minister of Punjab vis-à-vis the 
persons (strangers), who have participated in the interview process, 
applied the rule of severance, excluded the marks given by the 
stranger and held that whatever result emerges on account of the 
exclusion of the stranger’s marks, shall be taken to be the result of 
the committee, as quorum of the selection committee was complete.  
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
57 
80. 
 
In the case of Anderson v. City of Persons (496, P.2d 
1333-Kan: Supreme Court 1972), the Supreme Court of Kansas 
while dealing with a question, “The appellants' first point involves an 
alleged conflict of interest arising from the fact that City Commissioners 
Myer S. Freshman and Barton Dean and all of the five urban renewal 
commissioners owned property within the general urban renewal area at 
the time they voted on various resolutions during the progress of the urban 
renewal program. The legislature provided in the urban renewal law for a 
special conflict of interest section to disqualify any officer or employee of the 
city or of the urban renewal board who owned property included or planned 
to be included in an urban renewal project.” noted as under:- 
“It is undisputed in the evidence that on May 16, 1966, at the time 
the resolutions were passed by the city commission declaring certain 
areas of Parsons to be "slum and blight areas" and creating and 
appointing the urban renewal agency, two of the three Parsons city 
commissioners owned real estate in the slum or blight areas. The 
same two commissioners continued to own their properties at the 
time the urban renewal plan was adopted. The two commissioners 
mentioned were Myer S. Freshman and Barton Dean. On January 
22, 1969, the city commission by resolution approved the urban 
renewal project. At that time commissioners Freshman and Dean 
owned property within the urban renewal area but did not own any 
land within the area covered by the urban renewal project. As 
pointed out heretofore, at all stages in the development of the urban 
renewal program, all of the five urban renewal commissioners had an 
interest in property located within the general urban renewal area. 
The first issue to be determined is whether or not the various actions 
of the urban renewal board in establishing and developing the urban 
renewal program and the various actions of the Parsons city 
commissioners in approving the urban renewal plan and in 
approving the urban renewal project were so tainted with conflict of 
interest within the meaning of K.S.A. 17-4758 as to completely 
invalidate ab initio all of the actions and steps taken by the urban 
renewal board and by the city commissioners in developing the 
Parsons urban renewal program. It should be emphasized that each 
of the commissioners made a full disclosure of his property interest in 
the urban renewal area before participating in any action of his 
board. 
We, of course, recognize the common law principle that a public 
officer owes an undivided duty to the public whom he serves and is 
not permitted to place himself in a position that will subject him to 
conflicting duties or cause him to act other than for the best interests 
of the public. If he acquires any interest adverse to those of the public, 
without a full disclosure it is a betrayal of his trust and a breach of 
confidence. (United States v. Carter, 217 U.S. 286, 54 L.Ed. 769, 30 
S.Ct. 515.) 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
58 
The law, however, does not forbid the holding of an office and 
exercising powers thereunder because of a possibility of a future 
conflict of interest. (Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360, 89 
A.L.R.2d 612.) It has generally been held that the vote of a council or 
board member who is disqualified because of interest or bias in regard 
to the subject matter being considered may not be counted in 
determining the necessary majority for valid action. There are many 
cases cited in the annotation in 42 A.L.R. 698 in support of this 
principle. It is also the rule that where the required majority exists 
without the vote of the disqualified member, his presence and vote 
will not invalidate the result and further that a majority vote need 
not be invalidated where the interest of a member is general or of a 
minor character. (Beale v. City of Santa Barbara, 32 Cal.App. 235, 
162 P. 657; Corliss v. Village of Highland Park, 132 Mich. 152, 93 
N.W. 254, adhered to on rehearing 132 Mich. 159, 95 N.W. 416; 56 
Am.Jur.2d, Municipal Corporations, Etc. Section 172.) 
 
81. 
 
As regards Pinochet case (R v Bow Street Metropolitan 
Stipendiary Magistrate (1999) UK (H.L.52), the House of Lords on 
allegation that one of the Law Lords member of majority decision 
had links with Amnesty International complaining of the extradition 
of Gen. Pinochet, set aside his earlier majority decision by 3 to 2.   
 
82. 
 
Consequently, in our opinion, in view of the principle 
laid down in the cases of Ghulam Abbas and Muhammad Saleem 
(supra), the proceedings of the Judicial Commission, thereby 
nominating the names of two, mentioned above, as Judges of 
Islamabad High Court, Islamabad, are not vitiated because of the 
attendance of Mr. Justice Muhammad Anwar Khan Kasi in the 
meeting.  
   
 
83. 
 
Attending to questions No.(vi), (vii), (viii) & (xii) 
reproduced hereinbelow, which are interconnected and require to be 
answered together:- 
(vi) 
What should be the manner, mode and criteria before the 
Judicial Commission with respect to the nomination of a 
person as a Judge of High Court, Supreme Court and 
Federal Shariat Court in terms of Clause (8) of Article 175-
A of the Constitution of Islamic Republic of Pakistan, 1973; 
 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
59 
(vii) 
What is the proper role of the Judicial Commission and 
Parliamentary Committee under the Constitution of 
Pakistan with respect to appointment of Judges of Supreme 
Court, High Court and Federal Shariat Court; 
 
(viii) What should be the parameters before the Parliamentary 
Committee for the confirmation of the nominee of the 
Judicial Commission in terms of Clause (12) of Article 175-
A of the Constitution of Islamic Republic of Pakistan, 1973; 
and 
 
(xii) 
The Parliamentary Committee under Article 175-A of the 
Constitution may confirm or may not confirm a 
nomination in accordance with the provisions stated 
therein. What is the true import and meaning of the word 
“confirm” and what is the effect of the proviso to Clause 12 
of Article 175-A which reads as follows:  
 
“Provided further that if nomination is not 
confirmed, the Commission shall send another 
nomination; 
 
 
 
Clause 9 of Article 175A of the Constitution provides for 
the constitution of a Parliamentary Committee and Clause 10 thereof 
provides for quorum of the Committee, whereas Clause 12 of the 
said Article provides that the Committee on receipt of a nomination 
from the Commission may confirm the nominee by majority of its 
total membership within fourteen days, failing which the 
nomination shall be deemed to have been confirmed. Proviso to 
Clause 12 of Article 175A of the Constitution provides that the 
Committee, for reasons to be recorded, may not confirm the 
nomination by three-fourth majority of its total membership within 
the said period and shall forward its decision with reasons so 
recorded to the Commission through the Prime Minister. The role of 
the Committee after receipt of nominations from the Commission 
has been discussed in depth by a four Member Bench of this Court 
in the case of Munir Hussain Bhatti (supra) and it was held as 
under:- 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
60 
“The nominations made by the Judicial Commission and the 
refusal of the Parliamentary Committee to confirm the same 
appear to have generated considerable public interest, 
providing a great deal of material for debate in the public, the 
media and the legal fraternity. The Bar Associations of the 
High Courts in the country have also debated the impugned 
decisions of the Committee. The Sindh High Court Bar 
Association, which is itself a petitioner in Constitution 
Petition No.18 of 2011, has placed on record its resolution 
dated 23.2.2011 “condemning” the action of the Committee. 
The proceedings in these petitions and the short order of 
4.3.2011 have also made headlines in the print and the 
electronic media. More so, critical comments on our order 
dated 4.3.2011 have been carried prominently in the media. 
We, therefore, find little substance in the factual assertion 
advanced by Mr. K. K. Agha. 
 
“26. The repeatedly emphasized imperative of maintaining a 
record both of the proceedings of the Committee and of the 
“reasons” behind its decisions, very strongly suggests that 
the Committee’s decisions were intended to be subject to 
judicial review. Otherwise, if the Committee’s decisions were 
meant to be non-justiciable, and beyond judicial scrutiny, the 
insistence on recording reasons would not make much sense. 
It is an established rule of interpretation that Parliament does 
not waste words and redundancy should not be imputed to 
it. This principle would apply with even greater force to the 
Constitution - the supreme law of the land. On this point Mr. 
K. K. Agha was hard pressed to respond. It will be seen that 
even an insular reading of this Article, leaves the impression 
that the decisions of the Committee are subject to review. He, 
however, argued that even though the 19th amendment had 
required the Committee to give reasons for its decisions, it 
did not make any provision for these decisions to be 
challenged in a court of law.  
 
27. The above submission was augmented by Mr. K. K. Agha, 
by adverting to the Order of the seventeen-member Bench 
dated 21.10.2010 wherein it had, inter alia, been said that “in 
case of rejection of nomination by the Parliamentary 
Committee … [it] shall have to state reasons which shall be 
justiciable”. The gist of this argument appears to be that in 
view of the order of the larger Bench, this Court should infer 
that through the 19th amendment, it was intended by 
Parliament that decisions taken by the Parliamentary 
Committee should not be subject to judicial review. Such 
inference was sought on the basis that the suggestion in the 
aforesaid Order as to justiciability was not incorporated in 
the amended Article. The argument of the learned Additional 
Attorney General, based on implication and not on the 
wording of Article 175A as amended, is contrary to the 
jurisprudence 
that 
has 
evolved 
in 
our 
jurisdiction. 
Furthermore, the argument ignores the legal precept 
explained above that the Constitution has to be construed as 
an organic whole.” 
 
34. On the other hand, Article 175A has set up an 
independent constitutional body having a specific role 
assigned to it relating to the appointment of Judges of this 
Court and of the High Courts. This constitutional body, as 
adverted to above, has been referred to as a Parliamentary 
Committee but it is neither part of Parliament when acting 
under Article 175A nor is it elected by or answerable to 
Parliament. An examination of the Constitution and 
established Parliamentary practice will further demonstrate 
this distinction between the Committee set up under Article 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
61 
175A and a parliamentary committee. By virtue of Article 67 
of the Constitution, each House of Parliament may “make 
rules for regulating its procedure and the conduct of its 
business”. This authority has been exercised by both Houses 
of Parliament and as a result, rules have been framed. The 
upper House has framed the “Rules of Procedure and 
Conduct of Business in the Senate 1988” (the ‘Senate Rules’) 
while the National Assembly has adopted its own rules 
known as the “Rules of Procedure and Conduct of Business 
in the National Assembly, 2007” (the ‘Assembly Rules’). From 
the Senate Rules and the Assembly Rules, it is very clear that 
a parliamentary committee is a body elected by the respective 
houses of Parliament and answerable to such houses. For 
instance, the Assembly Rules in Rule 200, state that “[e]xcept 
as otherwise provided in these rules, each Committee shall 
consist of not more than seventeen members to be elected by 
the Assembly within thirty days after the ascertainment of 
the Leader of the House.” Likewise, the Senate Rules in Rule 
145(1) provide that “[e]ach Committee shall consist of not less 
than six members and not more than twelve members to be 
elected by the Senate… 
 
38. It would be obvious from a plain reading of the above 
provisions that the limited ouster of jurisdiction stipulated 
therein is in respect of, inter alia, the proceedings and 
conduct of business of the Parliament. The decisions of the 
Committee (even if comprised of persons who are honorable 
members of Parliament) cannot be considered immune from 
judicial scrutiny by virtue of Article 69. This conclusion 
necessarily follows from the fact that the Committee is a 
creation of the Constitution and not of the Parliament. 
Furthermore, it is independent of and separate from 
Parliament notwithstanding its composition. It performs, as 
noted above, an executive function relating to the Judiciary 
and, therefore, has been placed in the Chapter relating to the 
Judicature rather than in Chapter 2 [The Majlis-e-Shoora 
(Parliament)] dealing with Parliament. 
 
39. The justiciability of the decisions of the Parliamentary 
Committee can also be approached from another angle, 
which would be manifest from a holistic examination of the 
Constitution. The governance of state organs in Pakistan is 
based on checks and balances where the powers of each 
organ are counter-balanced by some other organ of the State. 
Thus, executive action taken by the various administrative 
and executive functionaries of the State can be called in 
question, inter alia, under Articles 199 and 184(3) of the 
Constitution. Such executive action may additionally be 
subject to Parliamentary review and over-sight in our 
parliamentary system of governance. Legislative action can 
also be called in question in Court, inter alia, on the 
touchstone that it is violative of the Constitution. Likewise, 
decisions rendered by this Court can be modified or reversed 
by legislation (in recognized circumstances) and such 
legislation may also be retrospective. Thus we see that each 
organ of the State, be it the Judiciary, the Executive or the 
Legislature, operates under constitutional constraints which 
effectively make these organs of State limited in their actions. 
 
84. 
 
The principles laid down in the said case were 
reiterated by another four Members Bench of this Court in the case 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
62 
of Federation of Pakistan v. Sindh High Court Bar Association (PLD 
2012 Supreme Court 1067).  
 
85. 
 
The roles of the Committee and the Commission as well 
as the parameters before the Committee for confirmation of a 
nomination by the Commission in terms of Clause 12 of Article 175A 
of the Constitution are well settled by the reading of the 
Constitution itself and also by the principles laid down by this Court 
in the afore-referred two judgments and in Advisory Jurisdiction the 
same cannot be reviewed.  
 
86. 
 
In the matter of Cauvery Water Disputes Tribunal (AIR 
1992 Supreme Court 522), the Supreme Court of India declined to 
answer the question of law under Article 148 of the Indian 
Constitution, which is parallel to Article 186 of the Constitution and 
held that:-  
“when the Supreme Court in its adjudicatory jurisdiction 
pronounces its authoritative opinion on a question of law, it 
cannot be said that there is any doubt about the question of 
law or the same is res integra so as to require the President to 
know what the true position of law on the question is. The 
decision of the Supreme Court on a question of law is binding 
on all Courts and authorities and under the said clause the 
President can refer a question of law only when this Court has 
not decided it. Secondly, a decision given by the Supreme 
Court can be reviewed only under Article 137 read with Rule 1 
of Order XL of the Supreme Court Rules, 1966 and on the 
conditions mentioned therein. When, further, the Supreme 
Court overrules the view of the law expressed by it in an 
earlier case, it does not do so sitting in appeal and exercising 
an appellate jurisdiction over the earlier decision. It does so in 
exercise of its inherent power and only in exceptional 
circumstances such as when the earlier decision is per 
incuriam or is delivered in the absence of relevant or material 
facts or if it is manifestly wrong and productive of public 
mischief. Under the Constitution such appellate jurisdiction 
does not vest in the Supreme Court, nor can it be vested in it 
by the President under Article 148 of the Indian Constitution”. 
 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
63 
87. 
 
For the foregoing reasons, it is not necessary to answer 
questions No.(vi), (vii) & (viii) & (xii), as the same have already been 
answered in the above referred cases.  
 
88. 
 
Now coming to questions No.(xi) & (xiii),which read as 
under:- 
(xi) 
Whether the Constitution of Pakistan prohibits individual 
Members of the JCP to initiate names for appointments of 
Judges to the Supreme Court, the High Courts and the 
Federal Shariat Court; and 
 
(xiii) Whether by not providing in camera proceeding for JCP in 
Article 175-A of Constitution of Pakistan, the intention of 
the legislature is to ensure complete transparency and open 
scrutiny? 
 
 
 
Clause 1 of Article 175A of the Constitution provides 
that there shall be a Judicial Commission of Pakistan for the 
appointment of the Judges of the Supreme Court, High Courts and 
the Federal Shariat Court. The composition of the Commission is 
provided in Clauses 2 and 5 of Article 175A of the Constitution for 
appointment of Judges of the Supreme Court and of the High 
Courts, respectively, and Clause 6 thereof relates to the composition 
of the Commission for appointment of Judges of the Islamabad High 
Court, whereas Clause 7 of the Article deals with the appointments 
of Judges of the Federal Shariat Court. The Constitution itself has 
not provided a mechanism by which the name of the proposed 
Judge for appointment in the Supreme Court, High Courts or 
Federal Shariat Court can be placed before the Commission except 
providing qualification in terms of Articles 177(2) and 193(2). 
However, Clause 4 of Article 175A of the Constitution confers 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
64 
powers upon the Commission to make rules regulating its 
procedure and Clause 15 thereof empowers the Committee to make 
rules to regulate its proceeding.   
 
89. 
 
The Commission, in exercise of the powers conferred on 
it by Clause 4 of Article 175A (1), framed the Judicial Commission of 
Pakistan Rules, 2010, which were duly published in the Gazette of 
Pakistan, dated 08.11.201. Rule 3 of the said Rules reads as under:- 
“3. Nominations for Appointments.(1)  For each 
anticipated or actual vacancy of a Judge in the 
Supreme Court or the Chief Justice of Federal 
Shariat Court or the Chief Justice of a High Court, 
the 
Chief 
Justice 
of 
Pakistan 
shall 
initiate 
nominations in the Commission for appointment 
against such vacancy. 
  
(2). For each anticipated or actual vacancy of a 
Judge in the Federal Shariat Court or Judge in the 
High Court, the Chief Justice of the respective 
Court shall initiate and send nomination for 
appointment against such vacancy to the Chairman 
for convening meeting of the Commission. 
  
5(4). The proceedings of the Commission shall be 
held in camera. A record of the proceedings shall 
be prepared and maintained by the Secretary duly 
certified by the Chairman under his hand.”     
  
 
 
Till date, the said Rules are not amended. No Member 
of the Commission, in terms of the Rules duly framed and not in 
conflict with any provision of Article 175A, except the Chief Justice 
of Pakistan or the Chief Justice of the Federal Shariat Court or of a 
High Court, can initiate the nomination for appointment against 
anticipated or actual vacancy therein.  
 
90. 
 
In terms of the said Rules, the Commission itself in its 
wisdom decided and rightly so that for each anticipated or actual 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
65 
vacancy of a Judge in the Supreme Court, High Courts and Federal 
Shariat Court, the Chief Justices of the said Courts shall initiate 
nomination in the Commission for appointment against such 
vacancy of a person duly qualified in terms of Articles 177(2) and 
193(2) of the Constitution and sent to the Chairman of the 
Commission. The Chairman of the Commission shall then call a 
meeting of the Commission where such nomination shall be 
discussed and deliberated upon and then either it will be approved 
or rejected. The wisdom behind the Rules framed by the 
Commission is that the Chief Justice of Pakistan or the Chief Justice 
of 
the 
concerned 
High 
Court 
is 
the 
best 
person 
to 
practically/technically evaluate a person’s caliber to be nominated 
as a Judge, including his legal competence and integrity. The Chief 
Justice of the High Court holding the highest office in the judicial 
hierarchy of the Province is the best person to know about all the 
Judicial Officers working in the Province and Advocates appearing 
before the High Court and on the basis of such personal knowledge, 
information and material before him, he recommends a person to be 
appointed as a Judge of the superior Courts.  
 
91. 
 
Except initiating the nomination of a person, the Chief 
Justice of Pakistan or the Chief Justice of the High Court has no 
other special role in the appointment process and is just like any 
other member of the Commission and merely because he initiates 
the nomination, the same itself cannot be recommended, but to be 
considered as an act of mere procedure. The name initiated by the 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
66 
Chief Justice of Pakistan or the Chief Justice of the Provincial High 
Court is discussed in the Commission comprising all members from 
different spheres including the Executive, Representatives of Bars 
and Senior Judges of the Supreme Court and the High Courts. After 
deliberations and technical/professional evaluation of person’s 
caliber as a Judge, the Commission nominates the name of such 
person to be appointed as a Judge of the superior Courts by majority 
of its total membership of the Commission.  
 
92. 
 
In the case of Sindh High Court Bar Association, Sukkur 
through President versus Pakistan through Secretary, Ministry of 
Law, Parliamentary Affairs & Justice, Islamabad and another (PLD 
2012 Sindh 531), the learned High Court of Sindh while dealing 
with the question of nominating a person as a Judge or an 
Additional Judge, in the meeting of the Commission held as under:-  
 
“We had the benefit of going through the judgment 
proposed to be delivered by our learned brother Maqbool Baqar 
J. We are in agreement with the conclusion drawn by him. 
However we intend to append our own reasoning in order to 
clarify that initial nomination for appointment as Additional 
Judge or a Judge in the High Court is to be made exclusively by 
the Chief Justice of the concerned High Court and after receiving 
the initial nomination, the Chairman, convenes meeting of the 
Judicial Commission of Pakistan where the nomination is 
considered. Judicial Commission then either recommends or 
rejects such nomination but on its own does not initiate the 
process of nomination. The reasons for stating so are as follows.  
 
Appointment of Judges of the superior courts are made 
under the provisions of Article 175-A of the Constitution. The 
said Article provides the procedure that is to be followed by the 
Parliamentary Committee but is does not provide the procedure 
that is to be followed by the Judicial Commission. Under sub-
Article (4) of Article 175-A of the Constitution it was left to the 
Judicial Commission to devise its procedure by framing its own 
rules. Such rules were framed by the Judicial Commission 
described as Judicial Commission of Pakistan Rules, 2010. Rule 3 
(2) of the said Rules provide that for each vacancy of a Judge in a 
High Court, nomination for appointment is to be initiated by the 
Chief Justice of the concerned High Court. Hence under the new 
dispensation also it is the Chief Justice of the concerned High 
Court who initially proposes a name against an anticipated or 
actual vacancy in his Court and sends it to the Chairman of the 
Judicial Commission. The Chairman then convenes meeting of 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
67 
the Judicial Commission. The nomination is discussed and 
deliberated and then either it is approved or rejected.  
 
 
We may add here that in case it is interpreted in a way 
that initial nomination of the person as a Judge or Additional 
Judge can also be made by other members of the Judicial 
Commission then it might lead to a bizarre situation. The 
Judicial Commission for appointment in the High Courts 
comprises of thirteen members. Apart from five sitting judges of 
the Supreme Court and two of the concerned High Court, the 
other six members of the Judicial Commission comprise of a 
retired judge, Federal Law Minister, Provincial Law Minister, 
Attorney General and one representative each from Pakistan Bar 
Council and Provincial Bar council. If they as members of 
Judicial Commission also become entitle to nominate persons for 
the consideration of the Judicial Commission in addition to the 
nominations sent by the Chief Justice of the concerned High 
Court then each of such members would be coming up with his 
own list of nominees whom he might consider suitable for 
appointment. There is strong possibility that at a time scores of 
nominations would be before the Judicial Commission for 
consideration. Pressure groups might also emerge lobbying with 
certain members of Judicial Commission to initiate nomination 
of persons of their choice. The entire process of appointment 
might get confused and become unworkable. It is to avoid all 
this that Rule 3(2) of Judicial Commission of Pakistan Rules, 2010 
provides that initial nomination for appointment, be it for a 
Judge or Additional Judge of a High Court, is to be sent to the 
Judicial Commission by the chief Justice of the concerned High 
Court. This has always been the procedure in the previous 
dispensation and has also been recognized under the present 
dispensation under Rule 3(2) of Judicial Commission of Pakistan, 
Rules, 2010. The only change that has been brought about after 
the 18th amendment to the Constitution is that determination of 
capability of a nominee of the Chief Justice of the High Court is 
not left to be decided by the Chief Justice of the concerned High 
Court and the Chief Justice of Pakistan only but to a thirteen 
member body called Judicial Commission of Pakistan.”  
 
93. 
 
Rules being delegated Legislation are subject to certain 
fundamental factors. Underlying the concept of delegated legislation 
is the basic principle that the Legislature delegates because it cannot 
directly exert its will in every detail.  
 
94. 
 
The Judicial Commission of Pakistan Rules, 2010 are not 
in contravention with or inconsistent or repugnant to any provision 
of the Constitution, and have been made and promulgated in 
exercise of the authority conferred on it by the Constitution.  
 
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
68 
95. 
 
On having dilated upon the questions referred to by the 
President of Pakistan and opinion recorded hereinabove, we are of 
the opinion that Mr. Justice Riaz Ahmad Khan is senior most Judge 
of the Islamabad High Court. 
 
96. 
 
Though it is desirable that the most senior Judge of the 
High Court should be appointed as Chief Justice of that Court, 
however, in view of Clauses 2 and 3 of Article 175A read with 
Clause 5, appointment of a Judge not most senior Judge as a Chief 
Justice of the High Court is not violative of any provision of 
Constitution.  
 
97. 
 
The 
recommendations 
made 
by 
the 
Judicial 
Commission in its meeting dated 22.10.2012 are not vitiated merely 
because Mr. Justice Muhammad Anwar Khan Kasi attended the said 
meeting.  
 
98. 
 
In terms of Article 175A of the Constitution, the 
President of Pakistan has no discretion to send the name of nominee 
of the Judicial Commission and confirmed by the Parliamentary 
Committee for reconsideration.    
 
99. 
 
The Judicial Commission in exercise of powers 
conferred by Clause 4 of Article 175A framed rules who can initiate 
.the name of a person as a Judge of the High Court, Federal Shariat 
Court and the Supreme Court and the Chief Justice of the High 
Courts and Federal Shariat Court, as the case may be.  
Reference No.1 of 2012 & Const.P.No.126 of 2012 
 
69 
100.  
The roles of the Parliamentary Committee and the 
Judicial Commission and parameters for the confirmation of the 
nominee of the Judicial Commission, have been dealt with, in detail, 
by this Court in the case of Munir Hussain Bhatti (supra). 
       
Judge 
 
 
Judge  
Judge  
 
Judge  
Judge  
 
 
 
 
 
 
EJAZ AFZAL KHAN, J. – I have gone through the judgment 
authored by my brother Mr. Justice Khilji Arif Hussain. I have also 
gone through the answers to the questions and the reasons 
recorded therefor.  I am not inclined to agree with some of them 
and thus answer the questions in my note recorded as under.  
 
2. 
 
Brief facts leading to the institution of the reference and 
the Constitution Petition are that a vacancy occurred in this Court 
on the retirement of Mr. Justice Mian Shakirullah Jan. In order to fill 
the said vacancy, the Judicial Commission of Pakistan in its meeting 
held on 27.09.2012 nominated Mr. Justice Iqbal Hameed-ur-Rehman 
as a Judge of this Court.  His nomination as such necessitated the 
nomination of a Judge of the said High Court for appointment as 
Chief Justice.  Mr. Justice Muhammad Anwar Khan Kansi was 
nominated for appointment as Chief Justice of the High Court on 
the ground that he was the most Senior Judge of the said Court. His 
nomination was confirmed by the Parliamentary Committee and 
sent to the Prime Minister, who forwarded it to the President for 
appointment. The President having serious reservations to the status 
of Mr. Justice Muhammad Anwar Khan Kansi as the most Senior 
Judge declined to appoint him and thus filed the reference raising 
the questions recounted above. Constitution Petition mentioned 
above is also a corollary of the same episode. 
3. 
 
Mr. Waseem Sajjad, learned Sr. ASC while appearing on 
behalf of the President contended that when the principle 
underlying determination of seniority of the Judges elevated on the 
same day is seniority in age, Mr. Justice Riaz Ahmed Khan, being 
senior in age is the most Senior Judge to be nominated as Chief 
Justice, Islamabad High Court. This practice, the learned counsel 
added, being more than a century old has been consistently 
followed in the Indian sub-continent and even after its partition.  The 
learned counsel to substantiate his argument referred to the letter 
No.F.12(5)/86-AII, dated 30.04.1987, Government of Pakistan, Ministry 
of Justice and Parliamentary Affairs (Justice Division). The learned 
counsel by elaborating his argument contended that when 
according to the dictum laid down by this Court in the case of “Al-
Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi 
and others. Vs. Federation of Pakistan and others” (PLD 1996 S.C. 
324), the most senior Judge of a High Court has a legitimate 
expectancy to be appointed as Chief Justice, Mr. Justice Riaz 
Ahmed Khan being the most senior Judge of the High Court, would 
be entitled to be nominated for appointment as Chief Justice in the 
absence of any valid reason and that the nomination of Mr. Justice 
Muhammad Anwar Khan Kasi is not only an out right departure from 
the century’s old practice but also against the law of the land, 
therefore, the President is not bound to appoint such person as 
Chief Justice. The learned counsel next contended that the Judicial 
Commission, nominating Mr. Justice Shaukat Aziz Siddique for 
appointment and Mr. Justice Noor-ul-Haq Qureshi for extension as 
Judges of the High Court, cannot be said to have been properly 
constituted in the absence of most senior Judge, therefore, their 
nomination will not have any legal or constitutional sanctity 
notwithstanding it having been confirmed by the Parliamentary 
Committee was sent to the Prime Minister and then forwarded to the 
President. This nomination would be all the more without any legal 
and Constitutional sanctity, argued the learned counsel, when the 
proceedings before the Commission have not been conducted in 
the manner prescribed by the Constitution. The learned counsel to 
support his contention referred to the cases of “Human Rights Cases 
No. 4668 of 2006, 1111 of 2007 and 15283-G of 2010, (Action taken 
on news clippings regarding Fast Food Outlet in F-9 Park, 
Islamabad). (PLD 2010 Supreme Court 759), and “Federation of 
Pakistan 
through 
Secretary, 
Ministry 
of 
Law, 
Justice 
and 
Parliamentary Affairs, Islamabad and others. Vs. Aftab Ahmad Khan 
Sherpao and others” (PLD 1992 S.C. 757(K). The fact, maintained the 
learned counsel, that a non-entity, sat, voted and took part in the 
proceedings of the Judicial Commission would alone call for their 
annulment. The learned counsel to support his contention placed 
reliance on the case of “Regina. Vs. Bow Street Metropolitan 
Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No.2). 
Even otherwise, the learned counsel submitted, the President being 
appointing authority is duty bound to ensure obedience to the 
Constitution and the law cannot appoint a person who has not 
been nominated in accordance with the provisions of the 
Constitution.  
4. 
 
During the course of arguments I asked the learned 
counsel for the President that when the proceedings in the house in 
view of the provision contained in Article 67 of the Constitution do 
not become invalid on the ground that some persons who were not 
entitled to sit, vote or otherwise take part in the proceedings, sat, 
voted and took part therein, how a proceedings of the Commission 
can become invalid on this score, the reply of the learned counsel 
was that the proceedings in the former case do not become invalid 
because it has been so provided in the aforesaid article but there is 
nothing of that sort in Article 175-A of the Constitution.  The learned 
counsel by referring to Article 48 of the Constitution contended that 
despite insertion of Article 175-A in the Constitution, the President still 
has the power to send back a nomination to the Judicial 
Commission for reconsideration. But when asked whether a 
nomination originating from the Judicial Commission, confirmed by 
the Parliamentary Committee, and forwarded by the Prime Minister 
to the President could be treated as an advice and returned as 
such for reconsideration in terms of Article 48 of the Constitution 
when it does not provide for any such eventuality, the learned 
counsel did not give any satisfactory answer. The fact is that his own 
reply to our query with reference to Article 67 of the Constitution 
barricaded his way to take a U-turn. Though he swang to yet 
another argument by submitting that the Constitutional provisions 
have to be interpreted as a whole and not in isolation but that 
would not be of any help to him.  The learned counsel further 
contended that if the principle of seniority and that of legitimate 
expectancy linked therewith, are ignored without reasons to be 
recorded, it would give rise to the whim and caprice of the person 
sitting at the peak which is not conducive for independence of 
judiciary.  The learned counsel also waxed eloquent by asking this 
Court to redefine the mode and manner of appointing judges but 
when I observed that all these questions have been elaborately 
dealt with in the case of “Munir Hussain Bhatti, Advocate and others. 
Vs. Federation of Pakistan and another” (PLD 2011 S.C. 407), the 
learned counsel submitted that they have been, but since they 
have been dealt with collaterally, the judgment so rendered being 
obiter dicta will not have a binding force. I would have agreed with 
the learned counsel for the President but he could not point out 
anything striking or significant in the judgment which went un-
noticed and unattended. It is, therefore, not obiter dicta by any 
attribute. This judgment could have been treated as sub-silentio: a 
precedent not fully argued, but again the learned counsel could 
not advert to any legal or Constitutional aspect of the case which 
escaped the notice of the Bench rendering the judgment, so as to 
relegate it to the status of sub-silentio. The learned counsel next 
contended that Mr. Justice Muhammad Anwar Khan Kasi could not 
be held as most senior Judge on the strength of the judgment 
rendered in the case of “Federation of Pakistan through Secretary, 
Ministry of Law and Parliamentary Affairs and Justice, Islamabad. Vs. 
Sindh High Court Bar Association through President and another”. 
(PLD 2012 Supreme Court 1067), as it does not provide any premises 
for such conclusion. How the proceedings in the Judicial 
Commission could be held in camera, asked the learned counsel, 
when the legislature in its wisdom purposely provided otherwise, so 
as to ensure complete transparency and open scrutiny. What would 
be the criterion, asked the learned counsel, for elevating a Judge or 
a Chief Justice of a High Court to the Supreme Court and how far 
the inter se seniority of the Judges or the Chief Justices of the High 
Courts would be relevant in this behalf?.  
5. 
 
Mr. 
Muhammad 
Akram 
Sheikh, 
learned 
Sr. 
ASC 
appearing on behalf of the petitioner contended that once the 
Judicial Commission nominated Mr. Justice Shaukat Aziz Siddique for 
appointment and Mr. Justice Noor-ul-Haq Qureshi for extension for a 
period six months as Judges of the Islamabad High Court, the 
Parliamentary Committee after having confirmed their nomination 
sent it to the Prime Minister and the Prime Minister forwarded it to the 
President for appointment, the President has no other option but to 
do the needful. The learned counsel next contended that Mr. 
Justice Muhammad Anwar Khan Kasi being the most Senior Judge 
rightly 
participated 
in 
the 
meeting 
of 
the 
Judicial  
Commission nominating the Judges mentioned above, therefore, 
the President has no power whatsoever to delay or decline the 
appointment on any pretext if it is seen in the light of Eighteenth and 
Nineteenth Amendment. Even if it is assumed, added the learned 
counsel, that the Judge participating in the meeting was a non-
entity, it would not materially affect the result if the doctrine of 
severance is applied. The learned counsel to support his contention 
placed reliance on the case “Managing Director, Sui Southern Gas 
Company Ltd., Karachi. Vs. Ghulam Abbas and others” (PLD 2003 
S.C. 724). The learned counsel next contended that had the 
decision been made by a margin of one, the argument of the 
learned counsel for the President and the judgment rendered in the 
case of “Regina. Vs. Bow Street Metropolitan Stipendiary Magistrate 
and others, Ex-parte Pinochet Ugarte (No.2) would have had some 
relevance but where the decision is by the majority of 7 against 2, 
absence of the persona designata or participation of a non-entity 
would be of little consequence. When I asked what course of action 
would be open before the President if a person nominated for 
appointment of a Judge of the Supreme Court does not fulfill the 
requirements laid down by Article 177(2) or a person nominated for 
appointment of a Judge of the High Court does not fulfill the 
requirements laid down by Article 193 (2) of the Constitution, the 
learned counsel except referring to the stance taken by the 
Government in C.M.A. No. 1602 of 2010 in Constitution Petition No. 
11 of 2010 could not state anything more.    
6. 
 
Learned Attorney General appearing on the Court’s 
notice contended that the Judicial Commission was not properly 
constituted, as the persona designata did not attend the meeting 
and the person who attended the meeting was just a non-entity 
therefore, the whole process shall stand vitiated. The President, the 
learned Attorney General submitted, is not bound to appoint a 
nominee 
of 
such 
Judicial 
Commission 
notwithstanding 
his 
nomination was confirmed by the Parliamentary Committee and 
forwarded to the President by the Prime Minister on its receipt. The 
learned Attorney General next contended that when in the 
judgment rendered in the case of “Sindh High Court Bar Association 
through its Secretary and another. Vs. Federation of Pakistan through 
Secretary, Ministry of Law and Justice, Islamabad and others” (PLD 
2009 S.C. 379), this Court annulled the appointment of many Judges 
for want of recommendation by the consultee, a nomination 
originating from the Judicial Commission which was not properly 
constituted has to be given alike treatment.  The learned Attorney 
General by referring to the commentary on the Constitution of India 
by Durga Das Basu argued that the President is not a robot placed 
in the President House nor a Computer controlled automation, nor a 
figure head nor ornamental piece placed in the show window of 
the nation called the President’s House. Instead, the learned 
Attorney General submitted, he is a living human who on being 
selected by the nation is endowed with all dignity, honour and 
prestige as head of the republic for upholding the Constitution and 
the laws, therefore, his role as such cannot be doubted in any 
situation. Seen from such angle, the learned Attorney General 
concluded, the President cannot be kept off the affairs regulating 
the appointment of Judges. 
7. 
 
Mr. Makhdoom Ali Khan, learned Sr. ASC appeared as 
Amicus Curie on Court’s notice. The learned counsel in the first 
instance addressed the Court as to the binding nature of an advice 
rendered by this Court in the exercise of its advisory jurisdiction. The 
learned counsel by referring to the relevant paragraph of the 
judgment rendered in “Reference No. 02 of 2005 by the President of 
Pakistan” (PLD 2005 Supreme Court 873) submitted that though an 
opinion given by the Court on a reference filed by the President is 
not a decision between the parties but since it is handed down after 
undertaking an 
extensive judicial exercise and hearing of 
Advocates it has a binding force. Such advice, the learned counsel 
submitted has to be accepted and acted upon with utmost 
respect. The learned counsel then by referring to various Articles of 
the Constitution in general and Article 175-A in particular contended 
that mode and manner of appointing Judges of the superior Courts 
has under gone a change and that the whole process from the 
inception to the last is now regulated by the latter. The learned 
counsel argued that once Judicial Commission has nominated a 
person, the Parliamentary Committee after having confirmed his 
name has sent it to the Prime Minister and the Prime Minister has 
forwarded it to the President for appointment, the President will 
have no choice but to appoint him. While commenting on the 
mode and manner of appointment of Judges and things ancillary 
thereto, the learned counsel submitted that an exhaustive exercise 
has been taken in the cases of “Al-Jehad Trust through Raeesul 
Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of 
Pakistan and others” (supra), and “Munir Hussain Bhatti, Advocate 
and others. Vs. Federation of Pakistan and another” (supra), 
therefore, yet another exercise is hardly called for. The learned 
counsel, however, submitted that the principle and practice of 
appointing most Senior Judge as Chief Justice is not open to any 
dispute and thus cannot be departed from without reasons to be 
recorded as held in the case “Al-Jehad Trust through Raeesul 
Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of 
Pakistan and others” (supra). The President or for that matter any 
other person performing in the affairs of Federation, the learned 
counsel submitted, is duty bound to protect the Constitution and 
that the instant reference appears to be an effort in this behalf. 
When asked, whether the President shall appoint a person a Jude of 
the Supreme Court, if he does not fulfill the requirements laid down 
by Article 177(2) or a Judge of a High Court if he does not fulfill the 
requirements laid down by Article 193 of the Constitution, 
notwithstanding Clause 13 of Article 175-A of the Constitution, the 
learned counsel readily replied in no. But when asked, how a 
deadlock occasioning due to refusal of the President to appoint a 
person nominated, who does not fulfill the requirements laid down 
by the Articles mentioned above, would be brought to an end 
especially when the President in view of the provision contained in 
Article 175-A cannot send the nomination back to the Commission 
for reconsideration, the learned counsel could not give any 
satisfactory reply. 
8. 
 
Khawaja Haris Ahmed, Sr. ASC who was also asked to 
assist the Court as Amicus Curie, highlighted the salient features of 
his written submissions. He by referring to Article 175-A of the 
Constitution submitted that the role of the President in appointment 
of Judges, is more or less ministerial when the Judicial Commission 
has nominated a person, the Parliamentary Committee after having 
confirmed his name has sent it to the Prime Minister and the Prime 
Minister has forwarded it to the President for appointment. He by 
referring to the judgment rendered in the case of “Munir Hussain 
Bhatti, Advocate and others. Vs. Federation of Pakistan and another” 
(supra), submitted that where almost all of the questions raised in 
the reference have been answered in the judgment, it would be just 
futile to rehearse the same.  
9. 
 
With regard to the question relating to seniority, the 
learned counsel submitted that the same being person specific is 
not one of law, therefore, this Court cannot afford to decide such 
question in its advisory jurisdiction. The learned counsel next 
contended that omission to mention the expression most senior 
Judge in the provision relating to appointment of Chief Justice of a 
High Court is significant and that in the absence of any express 
provision even the most senior Judge cannot have legitimate 
expectancy, as the Constitution on this score has remained the 
same even after the dictum laid down in the case of “Al-Jehad Trust 
through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. 
Vs. Federation of Pakistan and others” (supra). 
10. 
 
I have gone through the relevant record carefully and 
considered the submissions made by the learned counsel for the 
parties as well as amicus curie.      
11. 
 
Before I discuss the arguments addressed at the bar by 
the learned counsel and answer the questions raised in the 
reference and the petition, it is worthwhile to mention that the mode 
and manner of appointing Judges underwent a radical change 
after Eighteenth and Nineteenth Amendments of the Constitution. 
Almost all the process of appointing Judges, Chief Justices of the 
High Courts, the Federal Shariat Court and Judges of the Supreme 
Court has been capsuled in Article 175-A of the Constitution. A 
reference to the said Article would, therefore, be relevant which 
reads as under :-     
 “175-A, (1).  There shall be a Judicial Commission of Pakistan, 
hereinafter in this Article referred to as the Commission, for 
appointment of Judges of the Supreme Court, High Courts and the 
Federal Shariat Court, as hereinafter provided.  
 
(2)  For appointment of Judges of the Supreme Court, the 
Commission shall consist of --- 
 
 
i)  Chief Justice of Pakistan. 
 
 
ii)  (four) most senior Judges of the Supreme Court; 
 
iii) a former Chief Justice or a former Judge of the Supreme 
Court of Pakistan to be nominated by the Chief Justice of 
Pakistan, in consultation with the (four) member Judges, for a 
term of two years;  
 
iv)  Federal Minister for Law and Justice;  
 
v)  Attorney-General for Pakistan; and  
 
vi) a Senior Advocate of the Supreme Court of Pakistan 
nominated by the Pakistan Bar Council for a term of two 
years.  
3) 
 
Notwithstanding 
anything 
contained 
in 
clause 
(1) 
or  
clause (2), the President shall appoint the most senior Judge of the 
Supreme Court as the Chief Justice of Pakistan.  
 
4)     The Commission may make rules regulating its procedure.  
 
5)  For appointment of Judges of a High Court, the Commission in 
clause (2) shall also include the following, namely :---- 
 
i)  Chief Justice of the High Court to which the appointment is 
being made;  
 
ii)  the most senior Judge of that High Court;  
 
iii)  Provincial Minister for Law; and  
 
iv) an advocate having not less than fifteen years practice in 
the High Court to be nominated by the concerned Bar 
Council for a term of two years;  
 
[Provided that for appointment of the Chief Justice of a 
High Court the most Senior Judge mentioned in paragraph (ii) 
shall not be member of the Commission: 
 
Provided further that if for any reason the Chief Justice 
of High Court is not available, he shall be substituted by a 
former Chief Justice or former Judge of that Court, to be 
nominated by the Chief Justice of Pakistan in consultation with 
the four member Judges of the Commission mentioned in 
paragraph (ii) of clause (2)]. 
 
6)  For appointment of Judges of the Islamabad High Court, the 
Commission in clause (2) shall also include the following, namely :----- 
i)  Chief Justice of the Islamabad High Court; Member and   
 
 
ii)  the most senior Judge of that High Court;  
 
 
Provided that for initial appointment of the [Chief 
Justice and the] Judges of the Islamabad High Court, the 
Chief Justices of the four Provincial High Courts shall also be 
members of the Commission: 
 
 
Provided further that subject to the foregoing proviso, in 
case of appointment of Chief Justice of Islamabad High 
Court, the provisos to clause (5) shall, mutatis mutandis, apply.  
 
7)   
For appointment of Judges of the Federal Shariat Court, the 
Commission in clause (2) shall also include the Chief Justice of the 
Federal Shariat Court and the most senior Judge of that Court as its 
member: 
 
 
Provided that for appointment of Chief Justice of Federal 
Shariat Court, the provisos, to clause (5) shall, mutatis mutandis, 
apply.  
 
8)   
The Commission by majority of its total membership shall 
nominate to the Parliamentary Committee one person, for each 
vacancy of a Judge in the Supreme Court, a High Court or the 
Federal Shariat Court, as the case may be.  
 
9)   
The Parliamentary Committee, hereinafter in this Article 
referred to as the Committee, shall consist of the following eight 
members, namely :------- 
 
 
i) four members from the Senate; and  
 
ii) four members from the National Assembly [:] 
 
 
[Provided that when the National Assembly is dissolved, the 
total membership of the Parliamentary Committee shall consist of the 
members from the Senate only mentioned in paragraph (i) and the 
provisions of this article shall, mutatis mutandis, apply.]. 
 
10)   
Out of the eight members of the Committee, four shall be 
from the Treasury Benches, two from each House and four from the 
Opposition Benches, two from each House. The nomination of 
members from the Treasury Benches shall be made by the Leader of 
the House and from the Opposition Benches by the Leader of the 
Opposition.  
 
11)  
Secretary, Senate shall act as the Secretary of the Committee.  
12)   
The Committee on receipt of a nomination from the 
Commission may confirm the nominee by majority of its total 
membership within fourteen days, failing which the nomination shall 
be deemed to have been confirmed:  
 
 
[Provided that the Committee, for reasons to be recorded, 
may not confirm the nomination by three-fourth majority of its total 
membership within the said period:] 
 
 
[Provided further that if a nomination is not confirmed by the 
Committee it shall forward its decision with reasons so recorded to 
the Commission through the Prime Minister: 
 
 
[Provided further that if a nomination is not confirmed, the 
Commission shall send another nomination.] 
 
[13)   The Committee shall send the name of the nominee 
confirmed by it or deemed to have been confirmed to the Prime 
Minister who shall forward the same to the President for 
appointment] 
 
14)   
No action or decision taken by the Commission or a 
Committee shall be invalid or called in question only on the ground 
of the existence of a vacancy therein or of the absenee of any 
member from any meeting thereof.  
 
[15)    The meetings of the Committee shall be held in camera and 
the record of its proceedings shall be maintained.  
 
16)   
The provisions of Article 68 shall not apply to the proceedings 
of the Committee.] 
 
[(17)]  The Committee may make rules for regulating its procedure.]”  
 
12. 
 
A look at the above quoted provision would reveal that 
it prescribed the mode and manner as to how the judicial 
Commission shall proceed to nominate a person for appointment as 
a Judge or Chief Justice of a High Court, the Federal Shariat Court 
or a Judge of the Supreme Court and how the Parliamentary 
Committee would look at such nomination while confirming or 
refusing to confirm it. Who is eligible to be appointed as a Judge or 
Chief Justice of a High Court, the Federal Shariat Court or a Judge 
of the Supreme Court and whether the person sought to be 
nominated possesses the caliber, capacity and conduct befitting 
the slot, are the questions to be considered by the tiers listed in the 
provision mentioned above. Once a person is nominated by the 
Judicial Commission his name will go to the Parliamentary 
Committee. The Parliamentary Committee may confirm such 
nomination by majority of its total membership within fourteen days. 
If it fails to confirm a nomination within fourteen days it shall be 
deemed to have been confirmed. It may refuse to confirm a 
nomination by 3/4th and send it back to the Commission through the 
Prime Minister for reconsideration but after recording reasons 
therefor. The Commission shall, then, send another nomination. The 
Committee shall send the name of the nominee confirmed by it or 
deemed to have been confirmed to the Prime Minister who shall 
forward the same to the President for appointment.  
13.  
 
Now the questions arise what is nomination in its pith and 
substance; whether it can be treated as an advice to the President 
and if so whether it can be returned for reconsideration to the 
source it has originated from or processed through. Before I answer 
these questions, a careful look at Article 48 of the Constitution would 
be quite advantageous.  It, thus, reads as under :-  
“President to act on advice, etc.  
[48. 
(1) 
In the exercise of his functions, the President shall act 
[on and] in accordance with the advice of the Cabinet [or the 
Prime Minister]:  
 
[Provided that [within fifteen days] the President may require 
the Cabinet or, as the case may be, the Prime Minister to 
reconsider such advice, either generally or otherwise, and the 
President shall [, within ten days,] act in accordance with the 
advice tendered after such reconsideration.] 
 
(2) 
Notwithstanding anything contained in clause (1), the 
President shall act in his discretion in respect of any matter in 
respect of which he is empowered by the Constitution to do so 
[and the validity of anything done by the President in his discretion 
shall not be called in question on any ground whatsoever].  
(3) 
Clause (3) omitted. 
 
(4) 
The question whether any, and if so what, advice was 
tendered to the President by the Cabinet, the Prime Minister, a 
Minister or Minister of State shall not be inquired into in, or by, any 
court, tribunal or other authority. 
 
(5) 
Where the President dissolves the National Assembly, 
notwithstanding anything contained in clause (1), he shall,--- 
 
(a) 
appoint a date, not later than ninety days from the 
date of the dissolution, for the holding of a general 
election to a Assembly; and  
 
(b) 
appoint a care-taker Cabinet [in accordance with 
the provisions of Article 224 or, as the case may be, 
Article 224A]] 
 
[(6) 
If at any time the Prime Minister considers it necessary to 
hold a referendum on any matter of national importance, he may 
refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) 
and if it is approved in a joint sitting, the Prime Minister may cause 
such matter to be referred to a referendum in the form of a 
question that is capable of being answered by either --- Yes” or --- 
Not”.] 
 
(7) 
An Act of Majlis-e-Shoora (Parliament) may lay down the 
procedure for the holding of a referendum and the compiling and 
consolidation of the result of a referendum.]  
    
14. 
 
A bare reading of this Article would reveal that the 
President in the exercise of his functions shall act in accordance with 
the advice of the Cabinet or the Prime Minister. The President in view 
of the proviso to Article 48(1) has the power to require the Cabinet 
or the Prime Minister as the case may be, to reconsider such advice 
generally or otherwise. Similarly, the President, in view of the 
provision contained in Article 75 of the Constitution, has the power 
to return a bill, other than a money bill, presented to him for his 
assent, for reconsideration. A nomination originating from the 
Commission, confirmed by the Committee is also an advice in its 
pith and substance inasmuch as it is forwarded by the Prime Minister 
to the President for being acted upon. But since it originates from 
the Commission in terms of Article 175-A of the Constitution, it is not 
an advice in terms of Article 48 of the Constitution. Nor is it open to 
the incidence of return for reconsideration because Article 175-A of 
the Constitution does envision any such thing. This omission appears 
to be deliberate and purposeful. For whatever power the President 
had before Eighteenth and Nineteenth Amendments, including the 
power to return a nomination for reconsideration to the source it has 
originated from, has now been conferred on the Parliamentary 
Committee. If a power requiring the Prime Minister or the Cabinet to 
reconsider an advice, under Article 48, or a power requiring the 
Parliament to reconsider a bill, under Article 75 of the Constitution, 
has been conferred on the President, a power requiring the 
Commission or the Parliamentary Committee, to reconsider a 
nomination, too, could have been conferred on him, but it has not 
been conferred. When it has not been conferred, I am bound to 
take the Constitutional provisions as they are. A Causus Omissus can, 
in no case, be supplied by the Court of law as that would amount to 
altering the provision. “It is not our function, as was held by Mr. 
Justice Walsh, in the case of “Attorney General. Vs. Bihari, re 
Australia Factors Limited (1966) 67 S.R. (N. S. W) 150; to repair the 
blunders that are to be found in the legislation”. They must be 
corrected by the legislator”. A Court of law is not entitled to read 
words into the Constitution or an Act of Parliament unless clear 
reason is found within the four corners of either of them. Yes, the 
President can act in the exercise of his discretionary powers under 
Article 48 (2) of the Constitution but the areas of such powers are 
well defined and well marked. He cannot return a nomination for 
reconsideration even under the garb of his discretionary power 
when it in its origin and specie is not an advice in terms of Article 
48(1) of the Constitution. I, therefore, hold that the President has no 
power to return a nomination to any of the tiers it has passed from, 
even if it is violative of the Constitution or the law. But at any rate the 
President shall not appoint a person a Judge of the Supreme Court 
or a Judge or Chief Justice of a High Court as the case may be, 
whose nomination, in his opinion, is against the Constitution and the 
law.  For 
the 
Constitution 
which makes 
obedience 
to 
the 
Constitution and the law the inviolable obligation of every citizen 
would never ever require a person no less than the President to do 
something against the Constitution and the law.  Nor would his oath 
of office, which requires him to discharge his duties and perform his 
functions in accordance with the Constitution and the law, permit 
him to do any such thing. Reference may well be made to Article 
177 and 193 of the Constitution and Oath of the President which 
read as under :- 
 
 “Article 177: Appointment of Supreme Court Judges.  
[(1)  
The Chief Justice of Pakistan and each of the other 
Judges of the Supreme Court shall be appointed by the 
President in accordance with Article 175A.]  
 
(2)   
A person shall not be appointed a Judge of the 
Supreme Court unless he is a citizen of Pakistan and-  
 
(a) has for a period of, or for periods aggregating, not less 
than five years been a judge of a High Court (including a 
High Court which existed in Pakistan at any time before the 
commencing day); or  
 
(b) has for a period of, or for periods aggregating, not less 
than fifteen years been an advocate of a High Court 
(including a High Court which existed in Pakistan at any time 
before the commencing day)”.  
“Article: 193:  Appointment of High Court Judges 
[(1) 
 The Chief Justice and each of other Judges of a High 
Court shall be appointed by the President in accordance with 
Article I75A.]  
(2)   
A person shall not be appointed a Judge of a High 
Court unless he is a citizen of Pakistan, is not less than [forty-five] 
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.]” 
 
 
 
 
 
And  
 
“OATHS OF OFFICE 
President 
[Article 42] 
(In the name of Allah, the most Beneficent, the most Merciful.)  
 
I, ____________, do solemnly swear that I am a Muslim and believe in 
the Unity and Oneness of Almighty Allah, the Books of Allah, the 
Holy Quran being the last of them, the Prophethood of 
Muhammad  (peace be upon him) as the last of the Prophets and 
that there can be no Prophet after him, the Day of Judgment, and 
all the requirements and teachings of the Holy Quran and Sunnah:  
That 
I 
will 
bear 
true 
faith 
and 
allegiance 
to 
Pakistan:  
 
That, as President of Pakistan, I will discharge my duties, and 
perform my functions, honestly, to the best of my ability, faithfully in 
accordance with the Constitution of the Islamic Republic of 
Pakistan and the law, and always in the interest of the sovereignty, 
integrity, solidarity, well- being and prosperity of Pakistan: 
That I will not allow my personal interest to influence my 
official 
conduct 
or 
my 
official 
decisions:  
 
That I will preserve, protect and defend the Constitution of 
the 
Islamic 
Republic 
of 
Pakistan:  
 
That, in all circumstances, I will do right to all manner of 
people, according to law, without fear or favor, affection or ill- will:  
And that I will not directly or indirectly communicate or 
reveal to any person any matter which shall be brought under my 
consideration or shall become known to me as President of 
Pakistan, except as may be required for the due discharge of my 
duties as President.  
[ay Allah Almighty help and guide me (A'meen)]”  
 
15. 
 
The above quoted provisions of the Constitution as well 
as the oath of his office would show that the President before 
appointing a person, a Judge or a Chief Justice of a High Court or a 
Judge of the Supreme Court shall ensure that his nomination is in 
accordance with the Constitution and the law.  He shall not appoint 
a person, a Judge or a Chief Justice of a High Court or a Judge of 
Supreme Court, if his nomination does not conform to the 
Constitution and the law.  Especially when there is no provision in 
Article 175-A of the Constitution, in paramateria with that of Article 
48 requiring the President to do the needful within ten days, or a 
deeming provision in paramateria with that of Article 75 of the 
Constitution requiring the President to do the needful within ten days 
failing which the needful shall be deemed to have been done. A 
deadlock, would inevitably be the consequence as the President 
can neither return the nomination to the source it has originated 
from or processed through nor can he appoint the person, thus 
nominated. As the deadlock revolves around the constitutionality, 
legality or otherwise of the nomination recourse to an advisory or 
adjudicatory jurisdiction of this Court would be the only way out. If 
the Court upholds the opinion of the President, the Commission shall 
initiate proceedings denovo in accordance with the opinion of the 
Court. If it does not, the President shall appoint the person 
nominated accordingly.  
16. 
 
Who is senior, what is the criterion for determining 
seniority amongst the Judges elevated on the same day and what is 
the way of deciding about the most senior Judge for appointment 
as Chief Justice? Answers to these questions have been provided in 
the letter of Law Department dated 30.04.1987 which reads as 
under :-  
“No.F.12(5)/86-AII. 
 
 
 
Dated . 30.04.1987. 
 
GOVERNMENT OF PAKISTAN 
MINISTRY OF JUSTICE AND PARLIAMENTARY AFFAIRS 
(JUSTICE DIVISION) 
 
SUBJECT: 
SENIORITY LIST OF HIGH COURT JUDGES. 
 
My dear Chief Justice, 
  
Please refer to the correspondence resting with High Court of 
Sindh letter No. Gaz-IV,Z,14(i) dated the 30th March, 1987, on the 
subject noted above.  
 
2. 
An equitable principle consistently adopted in this regard is 
that Judges whose appointments are made by a single order, take 
seniority according to age. If the appointment of two or more service 
candidates is also simultaneously made with that of candidate from 
the Bar, the service Judges will retain their existing seniority in the 
department regardless of their age which of course would be the 
determining factor in respect of their seniority viz-a-viz candidates from 
the Bar. This principle has the approval of the President. 
 
3. 
I am to request you to please confirm whether the seniority list 
of Sindh High Court Judges has been prepared in the light of the 
above principle.  
  
With kind regards.  
Yours sincerely, 
Sd/- 
(Irshad Hassan Khan)” 
17. 
 
A perusal of the letter reproduced above leaves no 
doubt that the established practice and the time honoured 
yardstick for determining seniority amongst the Judges of a High 
Court, elevated on the same day, is seniority in age except in the 
case of Judges from service whose inter se seniority remains intact 
even on their elevation irrespective of their age. This principle has 
been consistently followed hitherto without exception ever since the 
establishment of the High Courts in the Indian Subcontinent and also 
after its partition. This principle even otherwise merits respect and 
reverence because it not only rules out personal whim and caprice 
of the person at one peak or another and shuts doors and windows 
for manipulation at ministerial level but also creates an environment 
which is conducive for the rule of law, supremacy of the Constitution 
and independence of Judiciary. This principle being too clear and 
conspicuous cannot be disputed. At times it has been departed 
from but that was only when there was something concrete against 
the Judge.  This is what was laid down in the case of “Al-Jehad Trust 
through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. 
Vs. Federation of Pakistan and others” (supra).  The relevant 
paragraph would be germane to the case in hand which reads as 
under:- 
     “It is true that in Article 193 of the Constitution which relates to inter 
alia to the appointment of a Chief Justice in a High Court, it has not 
been provided that most of the senior of Judges shall be made as the 
Chief Justice. The reason seems to be obvious, namely, it is possible 
that the senior most Judge, at the relevant time, may not be physically 
capable to take over the burden of the office or that he may not be 
willing to take upon himself the above responsibility. The Chief Justice 
of Pakistan, who is one of the consultees under Article 193 will be 
having expertise knowledge about the senior most Judges of a High 
Court. If the senior most Judge is bypassed for any of the above 
reasons, he cannot have any grievance but if he is superseded for 
extraneous considerations, the exercise of power under Article 193 of 
the Constitution will not be in accordance therewith and will be 
questionable. 
      I am, therefore, of the view that keeping in view the provisions of 
the Constitution as a whole and the well-established convention as to 
the appointment of the senior most Judges in the High Court as the 
Chief Justice followed consistently in conjunction with the Islamic 
concept of 'Urf'. The most senior Judge of a High Court has a 
legitimate expectancy to be considered for appointment as the Chief 
Justice and in the absence of any concrete and valid reasons to be 
recorded by the President/Executive, he is entitled to be appointed as 
such in the Court concerned. 
      Before parting with the discussion on the above question, I may 
observe that there seems to be wisdom in following the convention of 
seniority. If every Judge in a High Court aspires to become Chief 
Justice for the reason that he knows that seniority rule is not to be 
followed, it will adversely affect the independence of judiciary. The 
junior most Judges may feel that by having good terms with the 
Government in power he can become the Chief Justice. This will 
destroy the institution and public confidence in it. The Chief Justices of 
the High -Courts have the power to fix the roster i.e. to decide when a 
case is to be fixed and before whom it is to be fixed. In other words, 
they regulate the working of the forum It is, therefore, very important 
that the Chief Justices should not be  pliable and they should act 
independently”. 
 
The word “Urf” used in the above quoted paragraph is of 
tremendous 
significance 
which 
means 
commonly 
known, 
commonly received and commonly approved of. This principle 
was reiterated in the case of “Malik Asad Ali and others vs. 
Federation of Pakistan and others”( PLD 1998 SC 33), the relevant 
paragraph for the facility of reference is reproduced as under:- 
 “6. 
This Court in case of Al-Jehad Trust v. Federation of 
Pakistan PLD 1996 SC 324 while interpreting the provisions 
of Article 193 of the Constitution, relating to the 
appointment of Chief Justice of a Provincial High Court, on 
the basis of convention followed in this behalf held, that 
the senior most Judge of the High Court, in the absence of 
any concrete and valid reason has to be appointed as the 
Chief Justice of the High Court.  We are of the view that 
the above rationale laid down by this Court for 
appointment of the Chief Justice of High Court applied 
with greater force in the case of appointment of Chief 
Justice of Pakistan under Article 177 of the Constitution, in 
view of the more consistent practice and convention 
followed in this regard for appointment of Chief Justice of 
Pakistan in the past and especially in view of the provisions 
contained in Article 180 of the Constitution which 
recognizes the principle of seniority as the sole criteria for 
appointment of Acting Chief Justice of Pakistan.” 
 
This Court in the case of “Munir Hussain Bhatti, Advocate and others. 
Vs. Federation of Pakistan and another” (supra) while reaffirming the 
dicta laid down in the cases of “Al-Jehad Trust through Raeesul 
Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of 
Pakistan and others”(supra)  and “Malik Asad Ali and others vs. 
Federation of Pakistan and others” (supra) held as under:- 
 
“31. At this stage, it would also be appropriate for us to 
note that the contention of the AAG that earlier judgments 
on the issue of appointment of Judges are irrelevant is a bit 
misconceived.  The change in the appointment process 
has merely diversified decision making amongst the many 
members of the two new collegiate bodies, but essentially 
the roles of these bodies, looked at collectively, remains 
the same.  So as such the principles of law enunciated in 
earlier judgments such as Al-Jehad Trust case, Malik Asad 
Ali and several others would continue to apply to the new 
mechanism with full force. In face, these principles can be 
said to be applicable even more strongly after the 
introduction of the newly constituted bodies under Article 
175-A.” 
 
It, irresistibly, follows that this principle, practice or convention, 
whatever one may like to call it, besides being esteemed, honoured 
and upheld throughout has also been blessed with the approval of 
this Court in the judgments cited above. It is now a declared law of 
the land to all intents and purposes. I, therefore, do not see any 
reason much less tenable warranting any deviation therefrom.  
18. 
 
Yet another provision contained in the first proviso to 
Clause 5(iv) of Article 175-A of the Constitution, which provides that 
for appointment of the Chief Justice of a High Court the most senior 
Judge mentioned in Clause 5(ii) of the Article shall not be member 
of the Commission, unmistakably indicates that it has all along been 
taken for granted that it is the most senior Judge of the High Court 
who shall be nominated as Chief Justice in the absence of any valid 
reason. Otherwise, it would have been provided in the aforesaid 
clause that the Judge whose nomination for appointment as Chief 
Justice is in the offing shall not be member of the Commission. 
Therefore, the argument advanced by Kh. Haris Ahmed, learned Sr. 
ASC that the Constitutional provisions on this score have remained 
the same even after the dictum laid down in the case of “Al-Jehad 
Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. 
Vs. Federation of Pakistan and others” (supra) is without force. I am, 
therefore of the opinion, that Mr. Justice Riaz Ahmed Khan, being 
the most senior Judge of the High Court has a legitimate 
expectancy to be appointed as Chief Justice and that subject to 
any valid reason which is yet to be recorded by the Commission, he 
would be entitled to be appointed as such.  
19. 
 
Next question in the sequence is as to who determines 
seniority amongst the Judges appointed on the same day? Again 
the answer can be found in the long standing practice. It is the 
Chief Justice of the respective High Court who determines inter se 
seniority of the Judges in the light of the principle mentioned above. 
It is, then, the Judicial Commission nominating the most Senior Judge 
for appointment as Chief Justice, which determines inter se seniority 
of the Judges so elevated. The President in this scheme does not 
figure anywhere. It is, however, a fact well worth remarking that 
seniority in this case has been determined by the Chief Justice of the 
Islamabad High Court and that Mr. Justice Riaz Ahmed Khan being 
senior in age has already been declared the most senior Judge of 
the High Court.   Needless to say that settling the principle 
underlying the determination of a question can never become 
person specific. 
20. 
 
Then comes the question as to whether the well 
established principle underlying the determination of inter se 
seniority amongst the Judges has been departed from by the 
Commission on correct premises. Reference has been made to a 
paragraph from the judgment rendered in the case of “Federation 
of Pakistan. Vs. Sindh High Court Bar Association through its 
President” (CPLA No. 1390 of 2012) (supra) which runs as under :-  
“…………… It is for this reason that in number of 
judgments of the Apex Court, out of which two have 
been referred to above, in service matters, concept of 
reinstatement into service with original seniority and 
back benefits has been developed and followed on 
case to case basis to give complete relief to an 
aggrieved 
party. 
Following 
the 
same 
equitable 
principle, while passing our short order, we have 
specifically mentioned that the issuance of notification 
for permanent appointment of the two Judges shall 
have its effect from 17.9.2011 when four other 
recommendees of the Commission in the same batch 
were notified after clearance by the Committee, so 
that they shall have their respective seniority and all 
other benefits as permanent judges of the High Court”.  
 
But a careful reading of the above quoted paragraph would 
reveal that it has not judicially laid down any criterion for 
determining, inter se seniority among the Judges appointed on the 
same day. Nor has it justified a deviation from the recognized 
course. It, when read with reference to the context, deals with a 
situation different altogether. No such question was involved in that 
to draw a parallel between this case and that case or to treat them 
alike. I, therefore, have no hesitation to hold that the premises 
recorded by the Commission for departing from the well established 
principle of determining seniority are not correct.  
21. 
 
The next question emerging for the consideration of this 
Court on its advisory as well as adjudicatory side is whether the 
Judicial Commission in this case was properly constituted in the 
absence of a persona designata and whether the presence or 
participation of a person, who was a non-entity in the Commission, 
case, nor  has  it  been decided as such. It  would  thus  be  ominous 
could vitiate the nomination for the appointment of Mr. Justice 
Shukat Aziz Siddique and extension of Mr. Justice Noor-ul-Haq 
Qureshi ? Answers to these questions are simple and straightforward. 
Accepting that Mr. Justice Riaz Ahmed Khan being the most Senior 
Judge was required to attend the meeting of the Commission but 
his failure to do so for any reason, would not vitiate the proceedings 
of the Commission. For clause 14 of Article 175-A of the Constitution 
clearly provides that no action or decision taken by the Commission 
or a Committee shall be invalid or called in question only on the 
ground of the existence of a vacancy therein or of the absence of 
any member from any meeting  thereof.  Accepting that Mr. Justice 
Muhammad Anwar Khan Kasi being a non-entity sat, voted and 
took part in the proceedings culminating in the nomination of the 
Judges mentioned above, yet it would not vitiate the proceedings 
when the Judicial Commission, in view of Clause 8 of Article 175-A of 
the Constitution, has nominated the Judges by majority of its total 
membership. It would have vitiated or materially affected the 
proceedings of the Commission if it had nominated the Judges for 
appointment and extension with a margin of one. But where the 
Commission nominated the Judges by majority of 7 against 2, the 
presence or participation of Mr. Justice Muhammad Anwar Khan 
Kasi in the meeting would not be of any consequence. The case of 
“Managing Director, Sui Southern Gas Company Ltd., Karachi. Vs. 
Ghulam Abbas and others” (supra) may well be referred to in this 
behalf wherein it was held as under: -  
“Perusal of subsection (1) of section 3-A of the Act, 1973 
reveals that “minimum strength of a Bench to exercise or 
perform functions of the Tribunal is two Members, including 
the Chairman,’ meaning thereby that while conducting 
hearing the status of a Chairman is also of a Member.  
Whereas under clause (a) of section 3-A(2), decisions are to 
be pronounced by the majority of the Members.  Clause (b) 
of section 3-A(2) further provides that in case of division 
between Members of the Bench or in case of equal division 
of the Members, the case shall be referred to the Chairman 
and whatever opinion is expressed by him, would have 
supremacy and constitute the decision of the Tribunal.  In 
this case impugned judgment has been authored by the 
Chairman and all the Members have concurred with him, 
therefore, 
presuming 
that 
Mr. 
Aftab 
Ahmed 
joined 
proceedings without lawful authority but nevertheless 
impugned judgment can sustain, as it has been rendered by 
the Bench compromising of more than two Members of the 
Service Tribunal and apprehension of influencing the 
judgment by Mr. Aftab Ahmed (Retired Member) stands 
excluded as it was authored by a former Judge of High 
Court being the Chairman of the Service Tribunal.” 
 
22. 
 
The principle enunciated in the aforesaid judgment is not 
alien or extraneous, on any account, to our jurisprudence. It has also 
been recognized by Article 67 of the Constitution, which does not 
allow a proceedings of the House to become invalid simply 
because a person who was not entitled to sit, vote or otherwise take 
part in the proceedings, sat, voted or took part therein. The case of 
“Regina. Vs. Bow Street Metropolitan Stipendiary Magistrate and 
others, Ex-parte Pinochet Ugarte (No.2), therefore, has no relevance 
to the case in hand.  
23. 
 
Mr. Muhammad Akram Sheikh, learned Sr. ASC also 
referred to Establishment Manual but could not cite any clear and 
definite provision of law, rule or convention as could justify a 
deviation from the course which has been consistently followed till 
date. He failed to refer to any precedent much less relevant to 
support his stance. He also failed to bring anything exceptional, 
extraordinary or outstanding in our notice as could dilute, diminish or 
discount the binding force of the said principle. Even otherwise, I 
would not approve substitution or replacement of a principle which 
has unquestionably been accepted and acted upon throughout. 
24. 
 
The argument addressed by the learned Attorney 
General on the strength of “Sindh High Court Bar Association 
through its Secretary and another. Vs. Federation of Pakistan through 
Secretary, Ministry of Law and Justice, Islamabad and others” 
(supra) that if this Court annulled the appointment of many Judges 
for want of recommendation of the consultee, the nomination 
originating from the Judicial Commission which was not properly 
constituted has to be given alike treatment is wholly misconceived 
inasmuch as the status of the Chief Justice of Pakistan before the 
amendments has been brought at par with the status of a member 
after the amendments without appreciating that the Chief Justice 
of Pakistan before such amendments was the chief consultee. Even 
after the amendments he being the Chairman of the Commission is 
not only the chief consultee but no meeting of the Commission can 
be held in his absence. Whereas absence of any other member or 
vacancy in view of clause 14 of Article 175-A of the Constitution is of 
no consequence whatever.  
25. 
 
The argument of the learned counsel for the President 
that such nomination would be all the more without any legal or 
constitutional sanctity when the proceedings before the Commission 
were not conducted in the manner prescribed by the Constitution is 
also devoid of force as this provision for want of envisaging the 
consequence of failure or neglect to comply therewith cannot be 
treated as mandatory.  
26. 
 
The argument that the proceedings in the Judicial 
Commission could not be held in camera when the legislature 
purposely 
provided 
otherwise 
so 
as 
to 
ensure 
complete 
transparency and open scrutiny appears to be ornamental as its 
members not only represent all the essential segments of the Bar 
and Bench but also those of the Federation and the Province 
through Attorney General for Pakistan, Minister for Law and Justice 
of the Federation and Minister for Law of the Province. The scrutiny is 
open in the truest sense of the word when each member is at liberty 
to present his point of view one way or the other. Transparency in 
the proceedings cannot be affected by holding it in camera if 
every member consciously and conscientiously gives his input in the 
nomination, keeping in view its overall impact on the Institution on 
the one hand and society at large on the other. I do not understand 
what does the learned counsel for the President want to project by 
using the expressions “complete transparency and open scrutiny”. If 
he by using these expressions wants the inclusion and intrusion of all 
and sundry, I am afraid, he is far off the lines drawn by the 
Constitution. It was in view of this backdrop, that the Judicial 
Commission while framing the rules in exercise of the powers 
conferred on it under clause 4 of Article 175-A of the Constitution 
provided for holding the proceedings in camera.    
27. 
 
Question relating to criterion for elevating a Judge or 
Chief Justice of a High Court to the Supreme Court has been fully 
answered by Article 177 of the Constitution reproduced above. I, 
therefore, would not like to add anything thereto. The more so when 
the convention followed thus far is also in conformity with the letter 
and spirit of the Article mentioned above.  
28. 
 
Having thus considered, I answer the questions raised in 
the reference accordingly. The detailed reasons for the Short Order 
dated 21.12.2012 in the Constitution Petition No. 126 of 2012 are also 
included in the Judgment.   
29. 
 
While parting of the judgment, we would appreciate the 
enlightened assistance rendered by Mr. Makhdoom Ali Khan and 
Khawaja Haris Ahmed, learned Senior Advocates Supreme Court.   
 
 
 
 
 
 
 
 
(Ejaz Afzal Khan) 
 
 
 
 
 
 
 
 
Judge 
 
 
 
 
 
 
 
 
 
 
  


 








 


 



2012

 1




 

186
 


 
    




   

  



 

 



 


  
 




 







 



 
    

 


 








    


1




  


  


 
   



 
 
.i

   
 
.ii
2012 
14

  

   

  

 
 
  
 

  

  


   
 



  




  
 

 

 


     

  
186
  
 
 

   
 

   

27-09-2012
 

  

 
      



    

  

      

    

 
  


 

    
 





07:02


 
      

 
 

 
     



    


2
 
 

 
 

           



 
 
    

    

08:02
 

 

 
     

 




  
  
 





 
            


   

  


   

 

 
  
     
   
    

   

  




 

     
 



    





  
  
 


  

 
      
 


186
 

   
   

 

   
  
i

 

  
 
  

  


 
   
   
  
ii

 
 
    






 











 


 
iii

 
  


    


3
 
175(a)


 
iv
   
  

 
 

 

v
 

 

          
 

175(a)(8)
 
vi


 
  






    
  
   
  
vii
  
      

  

  
  

12

175(a)
 
viii


  
    




  



 
ix
 
   

  

  




  
  
  

x
    
  






  

 

     


      

xi

    


4
 
 

  

 


  
  
  
175(a)

 
xii
12

175(a)
   
  
 





  
   

 




 
     



  


   
  


175(a)
  
xiii
      
 



  
 
13
  




  

 
 
   

  



  
      
    


     
 
    





  
    
    
 


    


  
  

 
  
  
     


 
  
  

   

 







    


5

  

 


  


  



 







   

     




  



 
     
  
 


 
 
       


 


   
PLD 2005 SC 873


 
    

     
 
 

  


  

      
 








     


 
  












   
 
  


 

     
 
 



175(a)



 

   
 

       
 
  
 
 


    
 

    
 


  

 

     




    

      


 



   
     
13



  



(vires)
  
175(a)
    
186



    


6
  

  
 




     
10  5
  
   

      
 
 
 




 

 
 

175(a) 
      


 
 

 



   

 

      

      


   




 
 

   


 


  


 


  
   

  
   

  

    

  


 
    

 

  

   
213
  


 
 

 
 

  





  
 


 
  




 



224(1)(a)

     


  


224(a)
 






58
  

 
 


  
 








  


  
 





    


7
 

    

   
  




  
  
  




 

 
  


  
   

 
 



 
 
   
  



  





      

 



PLD 2011

 



    
  





 
175(a)

    
   
SC 407
 
  
  

 
  


  
 
  
 


  


 
   

   
   


  


  




175(A)

 
   

     
       
 
12
  



  



   

      

    


 



  
 
  


 


 

  


175(a)



  
  
   

175(3)
 

  


     
      

 



  
 


    


8





 
 
  
i
 



 
15-05-1952

    
   
 

 


21-11-2011
   

  

04-01-2011
  
28-11-1956
 
     
 

           
0 4 - 0 1 - 2 0 1 1





  



  

21-11-2011
 



  

 
 
 

 

 



    

 
   
   
 
 



  
   

  



 
 
 

 
 








  
  
 
  






 



  


    

  
  
  


  

    
175(3)


 
 






  
  
       

 
  

  
 
  

 
  


  



   
     

  






  
 


    


9

    
  
   


 







  
   



 
   

 





 
 




       
 
 


  
 
    

  


 2010
  


 
 


   
  
 
   
 
3


 
     


  



 
   
 


 
  


     
 

 

   
 
 
  


    

 








  
 
 

   


 

 



iv

 

 
22-10-2012
 
  
 
  



   

 
   
  
 

(Ex Pakistan
  
   
    
  

   





  

Leave)

175(a)

 
 

 
 

         
    
8

    


10
 


   








  
  



  

 

 

 

 
  

 


    
 
 


     







 
 
 
 
xii  viii, vii, vi
 


  

   
12

175(a)
    
 


  

 


 
 


 


 


  
       
 

 




 





  





  
12

175(a)
    

 

    
    
  
      

  
      
xii  viii,vii,vi 
 



       
  



 xiii   xi



  
   

  
 


       


1

175(a)


    
  
 

   
 
 

 175(a)

 
  
193(2)  177(2)
 



15
     

  
 
  
4

    


11
  



 

  
 

       



   
 

 

175(a)
    


 
        




     




 
  





     
 

  

 

  



 





    
  
 



   
 

  


 

    
     
 
  


   

   

2010




 
   
 
    

   
  

   

  

 
5

3  2

175(a)



 

  

 
   



      


22-10-2012



 

 




 


 

175(a)
 


    


12
 
 

  
  
  

     

 
4

175(a)
 

  
        

    

 
 




 


  



 
  
 






 


 







     



 
    



   





    













    
   









  





 

  



 





    

 
   




    
 

    




  


  
  





 

  







  










    



 






 








 




        


 


    


13
