ࡱ> ` }bjbj ;@hHHHHHHH\JJJ8KL\nMM:MMMNNN,......h_.H[NN[[.HHMMCsbsbsb[HMHM,sb[,sbsbT{HH~MM _J_@},Y0Z}C aC4~~8CH NRsbUTXNNN..bXNNN[[[[\\\16\\\6\\\HHHHHH   Constitutional Petition No.D-40 of 2009 Present: Mr. Justice Mushir Alam, Mr. Justice Khilji Arif Hussain, Mr. Justice Gulzar Ahmed, Mr. Justice Maqbool Baqar & Mr. Justice Faisal Arab.  Dates of hearing 14/4/2009, 21/4/2009, 22/4/2009, 27/4/2009, 28/4/2009, 29/4/2009, 30/4/2009, 04/5/2009 & 06.5.2009. Mr. Rasheed A. Rizvi, Advocate for petitioner. Mr. Sardar Abdul Latif Khosa, Attorney General of Pakistan alongwith Mr. Nazar Akbar, Deputy Attorney General for Pakistan for respondent No.1. Mr. Yousuf Leghari, Advocate General, Sindh and Mr. Aziz A. Munshi, Advocate for respondent No.2. None present for respondent No.3. M/s Yawar Farooqui & Irfan Memon Advocates for respondent No.4. Mr. Muhammad Javed Alam, Advocate for respondent No.5. M/s Khalid Anwar, Abdul Hafeez Lakho & Qazi Faez Isa, senior Advocates as Amicus Curie >>>>>>>>>> <<<<<<<<<<< GULZAR AHMED, J:- This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the Sindh High Court Bar Association through its Honorary Secretary Mr. Munir-ur-Rehman with the following prayers: A writ of quo-warranto be issued against the Respondents No.3,4 & 5 as under what authority they have assumed the offices of the Judge of the Sindh High Court. That this Honble Court be pleased to declare the appointment of Justice Bin Yamin and as permanent Judge the extension of the judicial tenure of Justice Syed Pir Ali Shah and Justice Arshad Noor Khan as additional Judges of the High Court of Sindh are unlawful, ultravires the Constitution, malafide and of no legal consequence. That in the alternative and without prejudice to the above reliefs, this Honble Court may be pleased to suspend the operation of impugned Notifications. A writ of prohibition restraining the Respondents no.1 & 2 from appointing or elevating any person as Judge of this Honble Court till decision of this petition. To direct the Ministry of Law, Government of Pakistan to place the entire record of proceedings of consultation before this Honble Court regarding appointment of Judges made on 12th December 2008. That this Honble Court be pleased to grant such other relief as may be deem necessary and just in the circumstances of the case. That this Honble Court be pleased to award costs of the petition. 2. The respondent No.1 in the petition is Federation of Pakistan through Secretary Ministry of Law and Justice, respondent No.2 is the Province of Sindh through Chief Secretary while respondent Nos.3, 4 & 5 are the Judges of this Court, in respect of whom this petition has been filed with the prayer as noted above. 3. By the notification dated 14.1.2007, the President of Pakistan under Article 197 of the Constitution read with Provisional Constitutional Order No.1 of 2007 and Oath of Office (Judges) Order 2007 appointed, besides others, the respondent Nos.3, 4 & 5 as Additional Judges of this Court for a period of one year. While their term as Additional Judges was expiring, the Chief Justice of this Court processed his recommendation for their confirmation or otherwise as Judge of this Court. Ultimately two notifications dated 12.12.2008 were issued. By one of the notification, the respondent No.3 namely Mr. Justice Bin Yamin was appointed as a Judge of this Court and by the other notification the tenure of respondents 4 & 5 namely Mr. Justice Syed Pir Ali Shah and Mr. Justice Arshad Noor Khan as Additional Judges of this court was extended for a period of six months. Both notifications have been impugned by the petitioner in this petition to the extent of respondents 3 to 5. 4. Initially this petition was being heard by a Division Bench of this Court comprising of the Chief Justice and a companion Judge sitting with him. On 06.3.2009 petitioners counsel requested the Division Bench for constitution of a larger bench upon which he was directed to submit a proper application to the Registrar of the Court. On 01.4.2009, the Chief Justice passed order constituting a larger bench for hearing of this petition. 5. During the hearing of this petition the petitioners counsel made a statement that in view of the fact that Mr. Justice Iftikhar Muhammad Chaudhary, the Honble Chief Justice of Pakistan has been restored to his office, he does not press prayer (iv), which may be dropped from the petition. M/S Khalid Anwar, Abdul Hafeez Lakho and Qazi Faez Isa senior Advocates were appointed as Amicus Curie to assist the Court in dealing with the intricate and substantial question of interpretation of constitutional law involved in the matter. The Attorney General of Pakistan and the Advocate General Sindh have already been issued notices as is required by order XXVII A CPC. 6. The petitioner had filed applications seeking directions to the respondent No.1 and the Registrar of this Court to place before this Court entire record of consultation proceedings regarding respondent Nos. 3, 4 & 5. Such applications of the petitioner were disposed off by directing the respondent No.1 to make available such record for the examination of the Court and that such record should be kept with the learned Attorney General/Deputy Attorney General to enable the Court to examine the same, if deemed necessary. 7. At the out set, learned Advocate General, Sindh raised two preliminary objections; one of which was that larger bench has not been constituted in accordance with Rule 12 of Sindh Chief Court Rules (AS) and secondly, the petition is not maintainable. These objections were raised by the learned A.G.Sindh on 14.4.2009 and it was ordered that such objections will be heard and decided after hearing all the learned counsel on the main petition at Katcha Peshi stage. On 21.4.2009, learned A.G.Sindh informed the Court that respondent No.2 namely Province of Sindh has appointed Mr. Aziz A. Munshi, Advocate to represent it in the matter, who being not present in court, at the request of learned A.G.Sindh matter was adjourned. Mr. Nazar Akbar, learned Deputy Attorney General made available to the Court, the record in sealed cover of recommendations in respect of respondents No.3 to 5. The sealed cover was opened in the Chamber of Honble Senior Puisne Judge in the presence of all the Members of the Bench, when Mr. Rasheed A.Rizvi, Advocate for the petitioner, Mr. Aziz A. Munshi, Advocate for respondent No.2, Mr. Yawar Farooqui, Advocate for respondent No.4, Mr. Javed Alam, Advocate for respondent No.5 and M/S Abdul Hafeez Lakho and Qazi Faez Isa, Amicus Curie were also in attendance. In the sealed cover three documents were found namely: (i) The recommendation letter of the Chief Justice of Sindh High Court, addressed to the Governor of the Province of Sindh; The recommendation letter of the Governor of the Province of Sindh addressed to the Law Secretary, Government of Pakistan, Islamabad; and The recommendation letter of the Chief Justice of Pakistan addressed to the Secretary Law, Government of Pakistan, Islamabad. 8. The cover was then sealed without examining the contents of the three documents and such sealed cover was handed over to the Nazir of this Court for its safe custody in lock and key, with direction to produce the same if their contents are to be examined. Pursuant to this exercise, following question was framed by the Court on which counsel for the parties and Amicus Curie were called upon to make their submissions: Whether in the matter of recommendation, extension, confirmation or otherwise of respondents 3 to 5, there was consultation by and between the constitutional consultees within the contemplation of Article 193 and 197 of the Constitution of Islamic Republic of Pakistan, 1973, as expounded by Honourable Supreme Court of Pakistan in the cases of Al-Jehad Trust (PLD 1996 SC 323), Malik Asad Ali (PLD 1998 SC 161), Ghulam Hyder Lakho (PLD 2000 SC 178) and Supreme Court Bar Association (PLD 2002 SC 939), respectively. 9. Though the learned A.G.Sindh, who appeared for respondent No.2 and also on notice under order XXVII-A CPC, has raised objections regarding constitution of bench and on the maintainability of the petition but subsequently as Mr. Aziz A. Munshi, Advocate has appeared for respondent No.2, he did not raise the first objection but stated that in his arguments he will raise the question regarding maintainability of the petition. However, as learned A.G.Sindh has raised objection regarding constitution of the bench, I deem it necessary to address the same in the first instance. 10. The precise objection of the learned Advocate General was that Sub-rule (2) of Rule 12 of the Sindh Chief Court Rules (AS) requires one or both referring Judges to sit as Member of the full bench and it being not so, the full bench was not properly constituted. Mr. Rasheed A. Rizvi, has, however, contended that the order dated 01.4.2009, by which the full bench was constituted by the Chief Justice, was not a judicial order but was an administrative order and in any case the Rules referred to by learned Advocate General has no application to this Court, rather High Court Rules & Orders as applicable to the Lahore High Court apply to the Sindh High Court. Mr. Yawar Farooqui, learned counsel for respondent No.4 has made an express statement that he has no objection to the constitution of the full bench. The question as to whether the Sindh Chief Court Rules (AS) are applicable or not to this Court was addressed by a simple statement by a Division Bench of this Court in the case of MESSRS MUQTADA KHAN IQTADA KHAN V/S MST.ALLAH RAKHI BEGUM (PLD 1972 Karachi 471), that Sindh Chief Court Rules (AS) do not apply to this court. Besides Sub-rule (2) of Rule 12 make reference to Section 12 of the Sindh Court Act, 1926. Incidentally, the Sindh Court Act, 1926 was repealed by the Section 28 of Punjab/Sindh/NWFP/Balochistan Civil Courts Ordinance, 1962 except Section 8 of it in respect of district of Karachi. Section 8 of the said Act provides that the Chief Court shall be the highest civil court of appeal and revision and the highest Court of criminal appeal and revision for Sindh and the principal civil Court of original jurisdiction for the civil district of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi. This provision has nothing to do with the constitution of the bench by Chief Justice. To the extent the objection raised by learned Advocate General on the basis of Sub-rule (2) of Rule 12 of Sindh Chief Court Rules (AS) the same being not applicable to this Court and Sindh Court Act, 1926 except its Section 8 having been repealed, the objection of learned Advocate General has no force and the same is rejected. 11. It may, however, be noted that High Court Rules & Orders are being applied in exercise of appellate jurisdiction of this Court as is reflected from the judgments of this Court in the cases of THE STATE V/S MUHAMMAD ASHRAF (PLD 1961 (WP) Karachi 452) and ABDUL AZIZ V/S ABDUL WAHAB (PLD 1964 (WP) Karachi 630) (Full Bench). This Court has also made certain amendments in the High Court Rules & Orders and one of such amendments was made by Sindh Amendment vide Correction Slip 188, published in Gazette of Sindh Part-IV-A dated 23.10.1975. The origin of application of the High Court Rules & Orders to this Court seems to have its source upon constitution of the High Court of West Pakistan through High Court of West Pakistan (Establishment) Order 1955 with its principle seat at Lahore and benches at Karachi and Peshawar and circuit courts in other places of Province of West Pakistan. High Court Rules & Orders which were applicable to High Court of Judicature at Lahore apparently came to be applied to the West Pakistan High Court bench at Karachi more so for the reason that through Order of 1955, the Chief Court of Sindh ceased to exist. This was further fortified by repealing of the Sindh Court Act, 1926 (except its Section 8) by the Civil Court Ordinance, 1962. Though through subsequent High Courts (Establishment) Order, 1970 the High Court of West Pakistan ceased to exist and in its place three High Courts were established namely High Court for the Province of NWFP to be called the Peshawar High Court with its principle seat at Peshawar, High Court for the Province of Punjab and Islamabad territory to be called Lahore High Court with its principle seat at Lahore and High Court for the Provinces of Balochistan and Sindh to be called Sindh and Balochistan High Court with its principle seat at Karachi and by the Balochistan and Sindh (High Courts) Order, 1976 the High Courts of Sindh and Balochistan were separated and High Court for the Province of Balochistan to be called High Court of Balochistan with its principle seat at Quetta and High Court for the Province of Sindh to be called High Court of Sindh with its principle seat at Karachi were established but no change as to the application of High Court Rules & Orders to this Court was brought nor any other rules seem to have been made by the Sindh High Court in the terms provided in Article 202 of the Constitution for regulating the practice and procedure of the Court for dealing with its appellate side work. 12. Rule 6 of Chapter 3, Part-A High Court Rules & Orders Volume-V provides that a full bench shall ordinarily be constituted of three judges, but may be constituted of more than three judges in pursuance of an order in writing by the Chief Justice. Rule 1 of chapter 10 part-A of High Court Rules & Orders deals with administrative business and its second proviso lays down that those matters which are the executive concern of the Chief Justice, namely the constitution of benches and the appointment of control of High Court establishment shall be dealt with in accordance with such instructions as may from time to time be issued by the Chief Justice. The above mentioned two rules give ample power to the Chief Justice to constitute bench including the full bench without any condition and that it is not necessary for the Chief Justice to sit as a member of the full bench constituted by him. 13. The next question that may be adverted to at this stage is with regard to the objection pressed by learned Attorney General, Mr.Aziz A. Munshi, and Mr.Yawar Farooqui that a Civil Petition No.09 of 2009 under Article 184(3) of the Constitution of Islamic Republic of Pakistan filed by the petitioner is pending in the Honble Supreme Court of Pakistan, in which similar question of facts and law are involved as in the present petition and proprietary demands that Honble Supreme Court be allowed to decide the said petition first and thereafter this petition may be taken up for hearing by this Court. Mr. Abdul Hafeez Lakho, learned Amicus Curie has, however, submitted that question or questions be formulated by this Court and same be referred for the decision of Honble Supreme Court. Mr. Khalid Anwar, learned Amicus Curie has contended that there is no need for this Court to go into the question as to whether the Chief Justice of Pakistan, who has exercised the power of a consultee under Article 193 of the Constitution, was a de fecto or de jure Chief Justice of Pakistan and that such question be left to be determined by Honble Supreme Court and that so far the present petition is concerned, this Court is fully competent to hear and decide the same. Mr. Rasheed A. Rizvi, learned counsel for the petitioner has submitted that Constitutional Petition No. 09 of 2009 filed by the petitioner in Honble Supreme Court of Pakistan is altogether for different reliefs and in any case no relief of quo-warranto has been sought in it and that choice of the forum lies with the petitioner and in this respect relied upon the case of MISS BENAZIR BHUTTO V/S FEDERATION OF PAKISTAN & ANOTHER (PLD 1988 SC 416) and contended that the petition may be heard and decided by this Court. 14. As the submission is based upon the Constitutional Petition No. 09 of 2009, filed in the Honble Supreme Court of Pakistan by the petitioner, I have gone through its contents and find that it is based upon interpretation of notification issued by the President of Pakistan relating to the tenure of appointment as Additional Judges of Mr. Justice Zafar Ahmed Khan Sherwani and Mr. Justice Abdul Rasheed Kalwar and notification of extension of their tenure as Additional Judges and also involves, as a matter of fact, question of malafides of the respondent No. 1 and about the competency and powers of Federal Law Secretary and also about the weight of opinion of the Chief Justice of Sindh High Court in the matter of making appointments of Additional Judges, recommending extension of their tenure or confirming them as permanent Judges. The relief sought in the said petition is as follows: to declare that the Respondents Nos.3 and 4 are and continue to be judges of the High Court of Sindh and would continue as Additional Judges till 25th August 2010 and that their term of appointment has not expired as opined by Justice Abdul Hameed Dogar. to declare and direct Registrar of the High Court of Sindh that the Respondents should be assigned regular work as judges of the Sindh High Court. to issue writ of mandamous directing the respondents to act in accordance with Constitution and the Law in the matter of appointment of Judges, in particular, the Respondents No.3 and 4 further directing the continuance of Respondents No.3 and 4 to perform functions and duties as Judges of the High Court of Sindh unless justiciable reasons are placed on record to ignore the recommendations by constitutional consultees asked through office memorandum dated 13th March 2009; to issue directions to Respondent No.1 and the Registrar of the High Court of Sindh to place the entire record of proceedings of consultation leading to issuance of notification dated 12th March 2009 before this Honble Court; to issue a writ of mandamus to appoint the Respondent Nos.3 and 4 as permanent judges of the High Court of Sindh under Article 193 of the Constitution of the Islamic Republic of Pakistan; to grant costs of the petition; and to grant any other relief or reliefs as may be considered appropriate and just in the circumstances of the case. On the other hand, the petitioner in the present petition has sought the following relief: A writ of quo-warranto be issued against the Respondents no.3,4 & 5 as under what authority they have assumed the offices of the Judge of the Sindh High Court. That this Honble Court be pleased to declare the appointment of Justice Bin Yamin and as permanent Judge the extension of the judicial tenure of Justice Syed Pir Ali shah and Justice Arshad Noor Khan as additional Judges of the High Court of Sindh are unlawful, ultravires the Constitution, malafide and of no legal consequence. That in the alternative and without prejudice to the above reliefs, this Honble Court may be pleased to suspend the operation of impugned Notifications. A writ of prohibition restraining the Respondents no.1 & 2 from appointing or elevating any person as Judge of this Honble Court till decision of this petition. To direct the Ministry of Law, Government of Pakistan to place the entire record of proceedings of consultation before this Honble Court regarding appointment of Judges made on 12th December 2008. That this Honble Court be pleased to grant such other relief as may be deem necessary and just in the circumstances of the case. That this Honble Court be pleased to award costs of the petition. 15. It may be noted that the relief claimed in para (iv) above, was dropped by the learned counsel for the petitioner during the course of hearing of this petition. Putting contents of both the petitions in juxtapose, it will become evident that Constitutional Petition filed in the Honble Supreme Court is in the nature of issuing to writ of mandamus or for the enforcement of fundamental rights, whereas in the Constitutional Petition in this court the relief claimed is that of quo-warranto. The rule for issuing a writ of mandamus/enforcement of fundamental rights and for issuing writ of quo-warranto are governed by two different independent sets of law, in which there is no similarity and the ultimate decision of the Court, in case writs are issued, produces altogether different results. In issuing of writ of mandamus/enforcement of fundamental rights, the Court directs the official functionaries to do and perform what law requires them to do and perform and in case of issuing of writ of quo-warranto the person holding or purporting to hold public office ceases to hold office for it being without authority of law. Thus the end-result is to be measured for exercise of judicial power by the Court and not merely its form or its apparent look. It being different, perhaps the rule of proprietary as canvassed will not be attracted. 16. Having said that the end result of the petition before Honble Supreme Court and the petition before this Court will altogether be different and further parties effected by it are also different and the Constitution by its Article 199(1)(ii) specifically confers powers on the High Court to entertain and decide a petition of quo-warranto, I, earnestly believe that a constitutional duty has been cast upon this Court to decide such matter, which duty ought not to be abdicated for reason that some point either collaterally or directly involved in this petition be also pending adjudication before the Honble Supreme Court in view of clear distinction in the two matters as noted above. This seem more appropriate in doing so, for the added reason that if any of the party is aggrieved by the decision of this Court, it will have remedy of having the decision of this Court examined by the Honble Supreme Court. In the case of Miss Benazir Bhutto (supra), the Honble Supreme Court at page 488 has observed as follows: The opening words without prejudice in Article 184(3) mean only not affecting, saving or excepting and when read with the words following thereafter, to the provisions of Article 199, the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two forums it wishes to invoke, and if it be the Supreme Court then the power exercisable is subject to the limitation under Article 184(3), that is, that the element of public importance must be involved in the enforcement of Fundamental Rights. 17. The next argument that was raised is regarding the competency of this Court to issue writ of quo-warranto against a Judge of the High Court. The learned Attorney General has argued that in the case of ABRAR HASSAN V/S GOVERNMENT OF PAKISTAN & ANOTHER (PLD 1976 SC 315) split decision was given by the Honble Supreme Court on the question as to whether a petition for quo-warranto will lie against a Judge of the High Court. He stated that a Judge of High Court being itself a High Court, no writ can be issued by the High Court against High Court and that there is not a single case where the High Court may have taken up the case of its own Judge about his competency to remain as a Judge or not and relying upon the case of MALIK ASAD ALI V/S FEDERATION OF PAKISTAN (PLD 1998 SC 161) stated that Supreme Court has been conferred superior jurisdiction under Articles 187 & 190 of the Constitution which powers are not available to High Court under Article 199 of the Constitution. Mr. Yawar Farooqui, learned counsel for respondent No.4 has contended that a petition for quo-warranto will not lie against respondent No.4 who fulfils the qualification of being appointed as Additional Judge and that there has been no allegation against him of corruption during his tenure of 31 years service in lower judiciary and that the remarks made on his ACR by Mr. Justice Syed Saeed Ashhad, the then Chief Justice of this Court, requiring improvement, such remarks were also removed from the service record of respondent No.4 before his elevation as Additional Judge of this court. Mr. Abdul Hafeez Lakho, learned Amicus Curie also contended that High Court does not possess power to issue writ of quo-warranto against a Judge of its own court. M/s Khalid Anwar and Qazi Faez Issa, the other two learned Amicus Curie contended that this Court is fully competent to decide this petition. Mr. Rasheed A. Rizvi, learned counsel for the petitioner has contended that petition of quo-warranto lies against a Judge of High Court and court will also be competent to issue such writ if it is satisfied that there was no consultative process in respect of appointment of Judges as laid down in Al-Jehad Trusts case. 18. Apparently, there was difference of opinion amongst the Honble Judges of Supreme Court in the case of Abrar Hassan (supra) on the question as to whether a petition of quo-warranto will lie against a Judge of High Court or not. The case of Abrar Hassan was decided by the four Member bench of Honble Supreme Court and on this point, the Court was equally divided. The case of Abrar Hassan subsequently came to be considered by ten Member Bench of the Honble Supreme Court of Pakistan in the case of Malik Asad Ali (supra) where the observation of the Court on this point starts from para 75 which is as follows: 75. It is, therefore, quite clear that there was unanimity in the views of all the four learned Members of Bench in Abrar Hassans Case that the appointment of a Judge of superior Court could be brought under challenge before a Court. However, there was divergence of opinion on the question of nature of proceedings which could be filed to challenge such appointment. Muhammad Yaqub Ali, C.J. and Anwarul Haq, J. were of the view that a direct proceeding to challenge the appointment of a Judge of superior court under Article 199 of the Constitution would be bared in view of the provision of clause (5) of Article 199, and therefore, such an appointment could only be challenged collaterally in a properly filed proceedings. The other two learned Members of the Bench Salahuddin Ahmed and Muhammad Gul, JJ. on the contrary held the view that such appointment could be challenged directly only through a petition under Article 199(1)(b)(ii) of the Constitution and not collaterally in other proceedings. This divergence of opinion amongst the learned Judges of the Bench in Abrar Hassans case was the result of different interpretation of clause (5) of Article 199 of the Constitution by them. Muhammad Yaqub Ali, C.J. and Anwarul Haq, J. held that the Judge and High Court are synonymous and interchangeable, and therefore, issue of a writ to a Judge would amount to issuance of writ to High Court which is prohibited by Article 199(5) of the Constitution. The other two learned Members of the Bench, Salahuddin Ahmed and Muhammad Gull, JJ.while disagreeing with the above interpretation, held that a Judge and the Court are not always synonymous. According to them, the Judge is properly identified with the Court when it does something in exercise of the jurisdiction vested in it as a Court. Otherwise, its personal identity remains distinct from the Court. The point has been aptly illustrated by the learned Judges (Salahuddin Ahmed, J and Muhammad Gul, J. by citing an example where the Judge unlawfully confines his domestic servant at his house and when he convicts and sentences him to jail in a case brought before him as a Judge of the Court. In the former case, the action of the Judge will be amenable to the jurisdiction of High Court under article 199 of the Constitution while in the latter case, it cannot be challenged under Article 199 ibid. once again there appears to be unanimity in the views of all the learned four Members of the Bench in Abrar Hassans case, that a Judge of a superior Court in his personal and individual capacity is not immune from the process of Court under Article 199 of the Constitution and that this immunity extends only to the acts and orders passed as a Judge of the Court or a member of the Court. 76. The dominant consideration which persuaded Muhammad Yaqub Ali, C.J. and with which Anwarul Haq, J. agreed, were stated in the opinion of Muhammad Yaqub Ali, C.J.as follows:- A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants under Article 199 as without, lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection one should bear in mind large number of decisions given by High Court in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation Authorities, Custodian of Evacuee Property, Settlement Authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Courts to quash, under Article 199, judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude Judges from the term High Court and Supreme Court in clause (5) of Article 199. 77. With greatest respect, we may point out that the judgments delivered by a Judge or group of Judges are the functions which identify the Judge or judges with the Court and therefore, to that extent the bar contained in clause (5) of Article 199 of the Constitution is fully attracted. The conclusions of Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hassans case, supra, were also not different. What these two learned Members of the bench (Salahuddin Ahmed and Muhammad Gul, JJ.) in Abrar Hassans case said was, that while the orders passed by a Judge in exercise of the jurisdiction of the Court cannot be called in; question under Article 199 of the Constitution, the acts of a Judge performed in his personal capacity did not enjoy this protection. The difference between a Judge acting as a Court and a Judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a judge will not be answerable for wrong done by him in his individual capacity. It may be pointed out that by accepting the office of a Judge, a person does not lose his individual identity as an ordinary citizen. Therefore, while action taken or orders passed by him in the former capacity as a Judge of the Court cannot be brought under challenge, under Article 199 of the Constitution, his action as an ordinary individual will be subject to ordinary law of the land including Article 199 of the Constitution. In this view of the matter, in our humble opinion, the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hassans case in respect of the maintainability of a petition seeking information in the nature of quo warranto against a Judge of superior Court seems to be more rational, practical and nearer to the spirit of the provision of the Constitution. A petitioner in a petition filed against a Judge of the superior Court seeking information in the nature of quo warranto, does not challenge any action or order of a Judge passed in his capacity as a Judge of the Court or a member of the Court. The qualification to hold the office of a Judge is personal to the individual and has nothing to do with his performance of duty as a Court or member of the Court. The qualifications for appointment of Judges of the superior Court are laid down meticulously in the Constitution. To possess the qualifications prescribed under the Constitution is a sine qua non for an individual to hold the office of a Judge of superior Court. Therefore, when the appointment of a Judge of superior Court is challenged on the ground that he did not possess the qualification prescribed by the constitution, the relater is not asking the Court to strike down any of his actions which he has performed or is performing as a Judge of the superior Court but asks for examination of his personal qualification to be entitled to hold the office of the Judge of superior Court. Such an exercise, in our humble opinion, does not fall within the mischief of the provision of Article 199(5) of the Constitution. We are, therefore, in no doubt that a petition seeking information in the nature of quo warranto lies against the Judge of a superior Court under Article 199 of the Constitution. We are further of the view that such an attack on the validity of the appointment of a Judge of a superior Court through collateral proceeding is not a proper remedy as firstly, such occasion may or may not arise and secondly, when the appointment of a Judge is attacked collaterally in a proceeding arising from his order, he is not necessarily arrayed as a respondent in the Court and therefore, he cannot be called upon to justify his appointment. It is also to be noted that in a collateral attack, on the validity of the appointment of a Judge, the proceedings are directed against the order passed by him and validity of his appointment is only challenged through a side wind, which is possible only, if the order passed by the Judge is subject to appeal, revision, review or other proceedings before a higher forum. Therefore, if the law does not permit any appeal or other proceedings against the order passed by a Judge, the occasion to challenge the validity of his appointment in collateral proceedings may not arise at all. For this reason too, we are in respectful agreement with the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ.in Abrar Hassans case that a petition against the Judge of a superior Court seeking information in the nature of quo warranto is maintainable under Article 199 of the Constitution. This view is more rational and has the effect of advancing the remedy and suppressing the mischief. This judgment of the Honble Supreme Court clearly states that a petition of quo-warranto in respect of Judge of a superior Court will be maintainable under Article 199 of the Constitution. 19. Having dealt with preliminary matters which were raised before the Court, I, now come to examine the actual question which was framed by the Court for the determination of this case, which is noted in para 8 above. 20. Elaborate arguments were addressed by learned counsel for the parties so also learned Amicus Curie. I would deal with the arguments, in the first instance, which have relevance to the question framed by the Court. 21. Learned counsel for the petitioner has contended that in appointments of respondents 3 to 5 as Judge or extension of tenure as Additional Judge through impugned notifications, there was no effective, meaningful, purposive, consensus-oriented consultation as laid down in Al-Jehad Trusts case (the Judges case) and that in such consultative process, primacy ought to have been given to the recommendations of the Chief Justice of Sindh High Court who otherwise was also a de jure Chief Justice of Sindh High Court while Mr. Justice Abdul Hameed Dogar was merely a de fecto Chief Justice of Pakistan. 22. Learned Attorney General on the other hand contended that the process of consultation as provided in the Constitution was complied with before issuing of notifications regarding respondents 3 to 5. He further contended that the President of Pakistan has acted on the recommendations of the Chief Justice of Pakistan who being paterfamilias of the judiciary, his recommendations are not justiciable. He also argued that though the Judges case requires that there should be consensus between the constitutional consultees for appointment of Judges of superior judiciary but it does not go on to say that there should be unanimity between all the constitutional consultees, as attaining unanimity in human affairs is not always possible. Except for the last mentioned contention of learned Attorney General, similar arguments were advanced by Mr. Aziz A.Munshi and also by Mr. Yawar Farooqui. 23. Mr. Khalid Anwar, the learned Amicus Curie has contended that the Court has to examine whether the procedure for appointment of Judges in superior judiciary as laid down in the Judges' case was followed before final decision in respect of respondents 3 to 5 was taken and that the matter of procedure is always justiciable and in this regard Court should examine whether the recommendations of Chief Justice of Pakistan reflected that he has made efforts for obtaining consensus as it has to be reflected in his recommendations and all matters regarding the consultative process should be in writing for maintaining transparency and good governance and that the opinion of one consultee has no less importance than of the others and it cannot be rejected without following consensus oriented consultation. He further contended that after the pronouncement in the Judges case, the word consultation with its definition was added in Article 260 of the Constitution and that such definition has to be given effect. He further contended that the High Court is not a subordinate Court to the Supreme Court nor Supreme Court has supervisory jurisdiction over the High Court, both being creature of Constitution, are independent Courts while the Supreme Court has appellate jurisdiction over the judgments, decrees and order passed by the High Court. The judicial power of Chief Justice of Pakistan is similar to that of other Judges of Supreme Court except that he possesses administrative powers regarding formation of benches and the administration of the Supreme Court. In the matter of appointment of Judges of High Court under Article 193 of the Constitution, the Chief Justice of Pakistan does not sit as appellate judge on the recommendation of Chief Justice of a High Court but performs functions of a constitutional consultee as one of the consultee and all consultees are equal having no superiority over others. He also contended that in case of conflict of opinion of Chief Justice of High Court and Chief Justice of Pakistan, it was necessary that such disagreement ought to have been resolved through consultative process in order to make it a consensus oriented exercise. Relying upon the case of SUPREME COURT ON RECORD ADVOCATE ASSOCIATION V/S UNION OF INDIA (AIR 1994 SC 268) the learned Counsel contended that if there be conflict of opinion between Chief Justice of a High Court and Chief Justice of Pakistan concerning the appointment of a judge of High Court, for valid reasons to be recorded and communicated to the Chief Justice of Pakistan non-appointment would be permissible. He further contended that conclusion of the consultation should either be yes or no of all the four consultees as provided in the Constitution. Mr. Abdul Hafeez Lakho, the learned Amicus Curie has also contended that there has to be effective consultation between constitutional consultees and only after such consultation has taken place final decision should be made. Mr. Qazi Faez Issa, the learned Amicus Curie contended that the process of consultation for the appointment of a Judge or Additional Judge of High Court the recommendations of Chief Justice of a High Court should not be considered meaningless rather if the Chief Justice of Pakistan differs with it, the opinion of the Chief Justice of a High Court should be given preference. 24. Learned counsel for the parties as well as the learned Amicus Curie in the course of their arguments extensively read from the various reported judgments of the Supreme Court of Pakistan and Supreme Court of India, while Mr. Yawar Farooqui also relied upon the Halsburys Law on the point of appointment and transfer of Judges, appointment process of Supreme Court of Canada, appointment of Australian Judges, process of appointment of Judges in United Kingdom, a note on filling up of vacancy of Chief Judge of Malaya and of Philosophy of Law, 2nd Edition by Joel Feinberg and Hyman Gross. 25. To the extent of reference made by Mr. Yawar Farooqui to the process of appointment of Judges of foreign countries except India, the Honble Supreme Court in case of Al-Jehad Trust V/s Federation of Pakistan (PLD 1996 SC 324) (hereinafter to be called Judges case) at page 478 has dealt with the question as follows: 44. In my view, the system of appointment of Judges obtaining in U.S.A. and U.K. has no direct bearing on the controversy in issue. Out of deference to the learned counsel, I have quoted certain extracts from the books cited by them. The systems of appointment of Judges in the above two countries are different as compared to our country. The relevant Articles in our Constitution relating to appointments in Judiciary with minor variations have been lifted from the Indian Constitution, 1950, and, therefore, the factum as to how they have been interpreted and acted upon in India is relevant. I have also referred to and quoted the relevant extracts from the relevant judgments of the Indian Supreme Court covering the controversy in issue. I, therefore, do not consider it necessary to examine such foreign references relied upon by Mr. Yawar Farooqui. 26. In the present case the Court is concerned with the case of respondents 3 to 5. Respondent No.3 appears to have been appointed as Judge of this Court under Article 193 of the Constitution while respondents 4 & 5 appear to have been given extension of tenure as Additional Judges in terms of Article 197 of the Constitution. The manner of appointment of an Additional Judge under Article 197 has been provided to be the same as provided in Article 193 of the Constitution. Article 193 of the Constitution provides for appointment of High Court Judge and its clause (1) says that a Judge of High Court shall be appointed by the President after consultation with the Chief Justice of Pakistan, with the Governor concerned and except where the appointment is that of Chief Justice with the Chief Justice of the High Court. The word after consultation has been comprehensively considered by the Honble Supreme Court in the Judges case. The Judges case has arisen on the facts which are concisely noted in the case of Mr. Justice Ghulam Haidar Lakho V/S Federation of Pakistan (PLD 2000 SC 179) and I consider it necessary to reproduce the same : 2. To understand the present controversy, it is necessary to briefly state here the background of the Judges case. In the year 1994, the then Federal Government of Pakistan, appointed twenty Additional Judges at a time against the vacancies existing in the Lahore High Court vide notification dated 4.8.1994. The appointments of these twenty Additional Judges were made after consultation with the then Acting Chief Justice of Lahore High Court and the then Chief Justice of Pakistan. Similar appointments of Additional Judges of High Courts were also made in the High Courts of Sindh and Peshawar by the then Federal Government in consultation with the respective Acting Chief Justices of the High Courts and the Chief Justice of Pakistan in 1993, 1994 and 1995. It may be mentioned here that prior to the appointment of twenty Judges in the Lahore High Court in August, 1994, the Government had declined to confirm Additional Judges of High Courts of Lahore and Sindh, appointed by the previous Government on completion of their period as Additional Judges, which was resented by the members of the bar. The appointment of twenty Judges in the Lahore High Court in August, 1994 in this background was not received well in the public and the legal circles, and were described as politically motivated and not on merits. In this backdrop, Al Jehad Trust, a social organization, headed by Habib-ul-Wahab-ul-Khairi, a practicing lawyer of this Court, filed a direct petition before this Court under Article 184(3) of the Constitution, wherein besides challenging the appointment of an Acting Chief Justice of Pakistan instead of permanent Chief Justice and various other issues relating to appointment, transfer and removal of Judges of the superior Courts were raised. Mr. Habib-ul-Wahab-ul-Khairi also filed a petition bearing No. 875 of 1994 in the Lahore High Court under Article 199 of the Constitution directly challenging the non-confirmation of 8 Additional Judges of High Court and appointment of 20 Additional Judges of the High Court. The above writ petition filed by Al-Jehad Trust through Habib-ul-Wahab-ul-Khairi before the Lahore High Court was heard along with two other similar Writ Petitions Nos.9893 and 10186 of 1994, and these were dismissed by a learned division bench of that Court by judgment dated 4-9-1994. Against the above judgment of the learned Division Bench of the High Court of Lahore, leave was granted in Civil Appeal No.805 of 1995 filed by Al-Jehad Trust. The above appeal, alongwith direct Constitutional Petition No. 29 of 1995 was heard by a Bench of this Court consisting of five learned Judges for days together and by a detailed judgment dated 20th March, 1996 while interpreting various Articles in the Constitution relating to superior judiciary, it laid down the parameters for appointment, transfer and other matter relating to superior judiciary of Pakistan. 27. After the hearing in Judges case was concluded, a short order dated 20.3.1996 was passed which is as follows: 2. In these two cases some appointments of Judges in the Superior Judiciary are challenged and called in question on the ground that they have been made in contravention of the procedure and guidelines laid down in the Constitution, and in this context we are called upon to examine in detail the relevant Articles pertaining to the Judiciary specified in Part VII of the Constitution to render an authoritative decision on the question of interpretation of such Articles in the light of other co-related Articles. 3. Pakistan is governed by the Constitution of the Islamic Republic of Pakistan, 1973, preamble of which says that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and independence of Judiciary fully secured. It also provided that the Muslims shall be enabled to ordain their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah. The Preamble is reflection of the Objectives Resolution which is inserted in the Constitution as Article 2A as substantive part of the Constitution by P.O. No.14 of 1985. Article 2 of the Constitution states in unequivocal terms that Islam shall be the State religion of Pakistan. Part IX of the Constitution contains Islamic Provision in which Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah. The Institution of Judiciary in Islam enjoys the highest respect and this proposition is beyond and dispute. The appointments of Judges and the manner in which they are made have close nexus with independence of Judiciary. 4. In the provisions relating to the Judicature in the Constitution, Article 175 provides that there shall be a Supreme Court of Pakistan, a High Court for each Provinces and such other Courts as may be established by law. Sub-Article(2) thereof provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Sub- Article (3) provides that the Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day. After expiry of the stipulated period, this Court has given judgment in the case of Government of Sindh v. Sharaf Faridi and others PLD 1994 Supreme Court 105, and has held on the subject of independence of Judiciary as under:- that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct of indirect, from any quarter for any reason; and That the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature. In this judgment this Court has further provided guidelines for financial independence of the Judiciary. The cut-off date of 23rd March, 1996 has been given by this Court to enable the Provincial Governments for final separation of Judiciary from the Executive as envisaged in the judgment mentioned above. 5. We have examined in detail the special characteristics of our present Constitution in conjunction with its historical background and Islamic Provisions while being fully cognizant of the powers of this Court to interpret the Constitution keeping in view the Doctrine of Trichotomy of Powers, and have heard in detail with utmost patience not only the learned counsel appearing for the parties, but also the most senior counsel as amicus curiae, representatives of the Bar associations of the Supreme Court and High Courts and the individuals who requested for hearing them on the subject of interpretation of provision of the Constitution relating to the Judiciary. The valuable assistance rendered by all of them is very much appreciated. 6. Article 177 of the Constitution envisages that the Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges of the Supreme Court shall be appointed by the President after consultation with the Chief Justice. As against this, for appointment of Acting Chief Justice of Pakistan, Article 180 provides that when the office of the Chief Justice of Pakistan is vacant or he is absent or unable to perform the functions of the office, the President shall appoint the most senior of the other Judges of the Supreme Court to act as the Chief Justice of Pakistan. We are not going into the question of interpretation of these two provisions in the light of contention that criterion of the most senior Judge in the appointment of Acting Chief Justice be impliedly read in the appointment of the Chief Justice of Pakistan for the reasons firstly that in Constitutional petition No. 29 of 1994, which is directly filed in this Court, appointment of the Acting Chief Justice was challenged on the ground that when there was clear vacancy after retirement, instead of Acting Chief Justice, the incumbent should have been appointed on permanent basis being the most senior. During pendency of the petition, permanent Chief Justice of Pakistan was appointed and, therefore, the petitioner did not press the prayer to that extent vide C.M.A. 541-K of 1996, dated 10th March, 1996. Secondly, proper assistance by the learned counsel on this point was also not rendered. Thirdly, the cases are pending in which the same subject-matter is involved. For such reasons, we do not consider it proper to go into the question of interpretation of these two provisions. 7. Our conclusions and directions in nutshell are as under:- (i) The words after consultation employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of the High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/ Executive. That if the President/Executive appoints a candidate found to be unfit and unsuitable for Judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution. That the permanent vacancies accruing in the offices of Chief Justices and Judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis. That no ad hoc Judge can be appointed in the Supreme Court while permanent vacancies exists. That in view of the relevant provisions of the Constitution established conventions/practice, 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 reason to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned. An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory Constitution requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in case the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness. The Additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while they are acting as Additional Judges, acquire legitimate expectancy and they are entitled to be considered for permanent appointment upon the expiry of their period of appointment as Additional Judges and they are entitled to be appointed as such if they are recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan in the absence of strong valid reason/reasons to be recorded by the President/ Executive. That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203-C of the Constitution without his consent is violative of Article 209, which guarantees the tenure of office. Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the framers of the Constitution, the same shall prevail and, hence such an appointment will be void. That transfer of a Judge of one High Court to another High Court can only be made in the public interest and not as a punishment. That the requirement of 10 years practice under Article 193(2)(a) of the Constitution relates to the experience/practice at the Bar and not simpliciter the period of enrolment. That the simpliciter political affiliation of a candidate for Judgeship of the superior Courts may not be disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. That it is not desirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court in view of clear adverse observation of this Court in the case of Abrar Hasan Vs. Government of Pakistan and others (PLD 1976 SC 315 at 342). That since consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid. In view of what is stated above, we direct: That permanent Chief Justices should be appointed in terms of the above conclusion No.(iii) in the High Courts where there is no permanent incumbent of the office of the Chief Justice; That the cases of appellants Nos.3 to 7 in Civil Appeal No.805 of 1995 (i.e. Additional Judges who were dropped) shall be processed and considered for their permanent appointment by the permanent Chief Justice within one month from the date of assumption of office by him as such; That appropriate action be initiated for filling in permanent vacancies of Judges in terms of above conclusion No.(iii); That ad hoc Judges working at present in the Supreme Court either be confirmed against permanent vacancies in terms of Article 177 of the Constitution within the sanctioned strength or they should be sent back to their respective High Courts in view of above conclusion No.(iv). That the cases of the appointees of the Federal Shariat Court be processed and the same be brought in line with the above conclusion No. (viii); and That upon the appointment of the permanent Chief Justice in the High Courts where there is no permanent incumbent or where there are permanent incumbents already, they shall process the cases of the High Court Judges in terms of the above declaration No.13 within one month from the date of this order or within one month from the date of assumption of office by a permanent incumbent, whichever is later in time and to take action for regularizing the appointment/ confirmation of the Judges recently appointed/ confirmed inter alia of respondents Nos.7 to 28 in Civil Appeal No.805/1995 in the light of this short order. In like manner, the Chief Justice of Pakistan will take appropriate action for recalling permanent Judges of the Supreme Court from the High Courts where they are performing functions as Acting Chief Justices and also shall consider desirability of continuation or not of appointment in the Supreme Court of ad hoc/Acting Judges. Resultantly, the direct petition and the appeal captioned above are allowed in the terms and to the extent indicated above. 28. On passing of above short order in the Judges case, reasons for the short order were recorded subsequently by the three Honble Judges of the bench separately namely by Honble Mr. Justice Sajjad Ali Shah (the then Chief Justice of Pakistan), Honble Mr. Justice Ajmal Mian and Honble Mr. Justice Manzoor Hussain Sial. Honble Mr. Justice Fazal Ilahi Khan and Honble Mr. Justice Manzoor Hussain Sial agreed with the judgment/reasons given by Honble Mr. Justice Ajmal Mian but Honble Mr. Justice Manzoor Hussain Sial also added his reasons. In the case of Mr. Justice Ghulam Haidar Lakho (supra) the Honble Supreme Court of Pakistan has held that the opinion recorded by both Mr. Justice Sajjad Ali Shah, the Chief Justice and Mr. Justice Ajmal Mian in the Judges case are to be treated as judgment of this Court. 29. At page 422 of the Judges case as many as 11 Constitutional questions of public importance relating to working of judiciary were formulated by the Court and I am mainly concerned here with the question No.(ii) which is as follows: (ii) What is the import of the words after consultation used inter alia in Articles 177 and 193 of the Constitution? To what extent the President is bound to accept the opinion of the Chief Justice of Pakistan and/or Chief Justice of a High Court while making appointment of Judges in the Supreme Court and High Courts under the above Articles 177 and 193 of the Constitution? 30. After examining the peculiar features of our country and constitutional history relating to judiciary of pre-partition and post-partition times, the Islamic jurisprudence in relation to working of judiciary and its appointments and commentaries of various authors on constitutional work, the judgment of six Member bench of this Court in the case of Sharaf Faridi & 3 others V/S The Fed. of Islamic Republic of Pakistan through Prime Minister of Pakistan & another (PLD 1989 Karachi 404), the case of M.M.Gupta and another V/S State of J&K & others (AIR 1982 SC 149) and the case of Supreme Court Advocate on Record Association V/S Union of India (AIR 1994 Supreme Court 268) the Honble Supreme Court made the following observations at page 490 of the judgment:- The object of providing consultation inter alia in Articles 177 and 193 for the appointment of Judges in the Supreme Court and in the High Courts was to accord Constitutional recognition to the practice/convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Federal Court, which was obtaining prior to the independence of India and post independence period, in order to ensure that competent and capable people of known integrity should be inducted in the superior judiciary which has been assigned very difficult and delicate task of acting as watch dogs for ensuring that all the functionaries of the State act within the limits delineated by the Constitution and also to eliminate political considerations. Mohtarma Benazir Bhutto, as the then Leader of the Opposition, while making a speech on 14-5-1991 on Shariah Bill in the National Assembly, had rightly pointed out that the power of appointment of Judges in the superior Courts had direct/nexus with the independence of judiciary. Since the Chief Justice of the High Court concerned and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations, as pointed out hereinabove, have been consistently accepted during pre-partition days as well as post-partition period in India and Pakistan. I am, therefore, of the view that the words after consultation referred to inter alia in Articles 177 and 193 of the Constitution involve participatory consultative process between the consultees and also with the Executive. It should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The Chief Justice of a High Court and the Chief Justice of Pakistan are well equipped to assess as to the knowledge and suitability of a candidate for judgeship in the superior Courts, whereas the Governor of a province and the Federal Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct. I will not say that anyone of the above consultees/functionaries is less important or inferior to the other. All are important in their respective spheres. The Chief Justice of Pakistan, being Paterfamilias i.e. head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely, his views deserve due deference. The object of the above participatory consultative process should be to arrive at a consensus to select best persons for the judgeship of a superior Court keeping in view the object enshrined in the Preamble of the Constitution, which is part of the Constitution by virtue of Article 2A thereof, and ordained by our religion Islam to ensure independence of judiciary. Quaid-e-Azam, the Founder of Pakistan, immediately after establishment of Pakistan, on 14-2-1948, while addressing the gathering of Civil Officers of Balochistan, made the following observation which inter alia included as to the import of discussions and consultations, copy of which is furnished by Mr. Yahya Bakhtiar:- In proposing this scheme, I have had one underlying principle in mind, the principle of Muslim Democracy. It is my belief that our salvation lies in following the golden rules of conduct set for us by our great law-giver, the Prophet of Islam. Let us lay the foundation of our democracy on the basis of truly Islamic ideals and principles. Our Almighty has taught us that our decisions in the affairs of the State shall be guided by discussions and consultations. I wish you, my brethren of Balochistan, God speed and all success in the opening of this new era. May your future be as bright as I have always prayed for and wished it to be. May you all prosper. (Underlining is mine). The views of none of consultees can be rejected arbitrarily in a fanciful manner, I am further inclined to hold that the views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wished to disagree with their views, it has to record strong reasons which will be justiciable. I am also inclined to hold that a person found to be unfit by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for appointment as a Judge of a High Court or by the Chief Justice of Pakistan for the judgeship of the Supreme Court cannot be appointed as it will not be a proper exercise of power to appoint under the above Articles of the Constitution. It may be stated that there seems to be unanimity of views among the learned counsel appearing for the parties and the learned counsel appearing as amicus curiae that consultatory process is mandatory and without it no appointment/confirmation can be made. It must follow that in absence of consultation as contemplated and interpreted by this Court as above, the appointment/confirmation of a Judge in the superior Court shall be invalid. The above view which I am inclined to take is in consonance with the well established conventions, Islamic concept of Urf and the proper exercise of power. 31. In case of Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court & another V/S Federation of Pakistan and others (PLD 1997 SC 84) which is a case arising, inter alia, out of a reference made by the President of Pakistan under Article 186 of the Constitution for opinion of the Supreme Court to the effect, whether or not the powers of President to make appointment of Judges in the Supreme Court and High Court in Article 177 & 193 of the Constitution are subject to provision of Article 48(1) of the Constitution which envisages in the exercise of his function, the President shall act in accordance with the advice of Cabinet or Prime Minister. The matter of consultation as required under Article 177 & 193 of the Constitution was further elaborated in this case and at page 193 of the judgment the following observation was made. Since the interpretation of the various Articles by this Court becomes part of the Constitution and as it becomes the law, it is incumbent on all Executive and Judicial Authorities throughout Pakistan to act in aid of the Supreme Court by virtue of Article 190. An advice under clause (1) of Article 48 of the Constitution, therefore, cannot be in violation of the law as declared by this Court. In other words, if the advice tendered by the Prime Minister in respect of appointments of the Judges of the superior Courts is in accordance with the judgment of this Court in the Judges Case, it will be binding on the President. But if the advice is contrary to the above judgment, the President has several options which inter alia include the following:- The President may agree with the reasons recorded by the Prime Minister for not accepting the recommendations of the Chief Justice or the Chief Justices. In that event the above reasons will be justiciable as held by this Court in the Judges Case. The President may refer back the matter to the Prime Minister for reconsideration under the proviso to clause (1) of Article 48. The President may refer the matter for consideration of the Cabinet under clause (c) of Article 46 of the Constitution. The President may convene a meeting and may invite the Prime Minister, the Chief Justice of Pakistan and the Chief Justice of High Court concerned for resolving the issue by participatory consultative process, consensus-oriented. Mr. Justice (Retd.) Muhammad Shahabuddin, former Chief Justice of Pakistan, in his Book under the title Recollections and Reflections quoted by me in para 46 at page 483 in my opinion in the Judges Case has referred to the above practice. The President may make a reference to this Court under Article 186 for soliciting opinion. 32. On perusal of the two judgments, one in the Judges case and the other inter alia, arising out of the Presidential reference, the following law seems to have been laid down by the Honble Supreme Court. The object of providing consultation, inter alia, in Article 177 and 193 for the appointment of Judges in the Supreme Court and in the High Courts was to accord constitutional recognition to the practice/ convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Federal Court which was obtaining prior to independence of India and post-independence period, in order to ensure that competent and capable people of known integrity should be inducted in the superior judiciary; Since the Chief Justice of High Court concerned and Chief Justice Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations have been consistently accepted during pre-partition days as well as post-partition period in India and Pakistan; The words after consultation referred to inter alia, in Articles 177 and 193 of the Constitution involve participatory consultative process between the Consultees and also the Executive. It should be effective, meaningful, consensus-oriented leaving no room for complaint of arbitrariness or unfair play; The Chief Justice of a High Court and Chief Justice of Pakistan are well equipped to asses as to the knowledge and suitability of a candidate of judgeship in the superior Courts whereas the Governor of a Province and the Federal Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct. None of the consultees/functionaries is less important or inferior to the other. All are important in their respective spheres. The Chief Justice Pakistan being Paterfamilias i.e. head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely his views deserve due deference. The view of none of the consultee can be rejected arbitrarily in a fanciful manner and that the views of Chief Justice of the High Court concerned and Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wish to disagree with their views, it has to record strong reasons which will be justiciable. That if a person found to be unfit by the Chief Justice of a High Court and Chief Justice of Pakistan for appointment as a judge of a High Court or by the Chief Justice of Pakistan for the judgeship of the Supreme Court cannot be appointed as it will not be proper exercise of power to appoint under the Articles of the Constitution. That since the interpretation of the various Articles by the Supreme Court becomes part of the constitution and as it becomes the law, it is incumbent on all Executive and judicial authorities throughout Pakistan to act in the aid of the Supreme Court by virtue of Article 190. An advice under clause (1) of Article 48 of the Constitution, therefore, cannot be in violation of law as declared by the Supreme Court. If the advice tendered by the Prime Minister in respect of appointment of the Judge of a superior Court is in accordance with the judgment in the Judges case, it will be binding on the President. But if the advice is contrary to the said judgment the President has several options which, inter alia, include the following. The President may agree with the reasons recorded by the Prime Minister for not accepting the recommendations of the Chief Justice or the Chief Justices. In that even the above reasons will be justiciable as held in the Judges case. The President may refer the matter to the Prime Minister for reconsideration under the proviso of clause (1) of Article 48 of the Constitution. The President may refer the matter for consideration of the Cabinet under clause (c) of the Article 46 of the Constitution. The President may convene a meeting and may invite the Prime Minister, the Chief Justice of Pakistan and Chief Justice of High Court concerned for resolving the issue by participatory consultative process and consensus-oriented. The President may make a reference to the Supreme Court under Article 186 for soliciting opinion. 33. The consistent view of the Honble Supreme Court of Pakistan as reflected from the above referred judgments has been that the Executive Authority is bound to accept the views of Chief Justice of High Court concerned and Chief Justice of Pakistan in the matter of appointment of judges in superior judiciary and such view cannot be rejected arbitrarily for extraneous consideration and if the Executive wishes to disagree with their views, it has to record strong reasons which will be justiciable and that if a person is found to be unfit by the Chief Justice of a High Court concerned and Chief Justice of Pakistan for appointment as a judge of a High Court, he cannot be appointed as it will not be a proper exercise of power to appoint under Articles of the Constitution. The judgment thus proceeds on the assumption that the views of the Chief Justice of a High Court and Chief Justice of Pakistan are identical and does not speak of a case in specific terms where the views of Chief Justice of High Court concerned and Chief Justice of Pakistan may not be the same. The assumption that there will be identity of views Chief Justice of High Court concerned and Chief Justice of Pakistan in the matter of appointment of a Judge or Additional Judge of the High Court perhaps is based on the time tested fact that both the Chief Justice of High Court concerned and Chief Justice of Pakistan being Members representing judiciary have their channels of discussion/ consultation open between them and if there does crops-up difference of opinion between them, they are completely free to have their views discussed with each other to reach consensus between them. As an instance, the case of Mr. Justice Mushtaque A. Memon (as he then was) was put before the Court. It was informed to the Court that when the tenure of Mr. Justice Mushtaque A. Memon as an Additional Judge of this Court was about to expire, recommendation was forwarded by the then Chief Justice of Sindh High Court for extending his tenure as an Additional Judge for another six months. The then Chief Justice of Pakistan did not agree with such recommendation of the then Chief Justice of Sindh High Court and discussions opened between them and it was ultimately resolved that the then Chief Justice of Sindh High Court will recommend appointment of Mr. Justice Musthaque A. Memon as a permanent Judge of this Court which was done and ultimately accepted by the Executive. The difference in views between Chief Justice of High Court and Chief Justice of Pakistan in the matter of appointment of a Judge or an Additional Judge in the High Court have been arising but there appears to be no one case where it may not have been resolved through the process of consultation between them. No such situation could have been visualized nor comprehended for the reason that Chief Justice of High Court and Chief Justice of Pakistan being head of their respective Courts are always expected to resolve their differences by an amicable means so as to forward to the Executive a consensus view from the side of judiciary regarding appointment of a Judge or an Additional Judge of a High Court. 34. His Lordship Verma, J who has written the majority view in the case of Supreme Court Advocate on Record Association (supra) has made a hint to an eventuality of conflict of opinion between a Chief Justice of High Court and Chief Justice of India in respect of appointment of a Judge in High Court which was considered in the Judges case at page 481 as follows: Whereas in sub-para.(6) of para.501 of his opinion, he observed that there may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at time, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India. Reference may also be made to sub-para.8 of aforesaid para.501, where Verma, J. opined that if the opinions of senior Judges consulted by the Chief Justice are contrary to the views of the Chief Justice as to the suitability of the recommendee for the reasons recorded by them, the President may accept their views and then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible. He further opined that similarly, when the recommendation is for appointment to a High Court and the opinion of the Chief Justice of the High Court conflicts with that of Chief Justice of India, the non-appointment for valid reasons to be recorded and communicated to the Chief Justice of India would be permissible. It is, therefore, evident that factually it has not been held that the Chief Justices views would have primacy in all matters of recommendations made by him for the appointment of Judges in the superior Courts. The observations made in the last sentence in the above quoted paragraph from the Judges case amply demonstrate that factually it has not been held that the Chief Justices views would have primacy in all the matters of recommendations made by him for the appointment of Judges in the superior Courts. 35. I may note that after pronouncement in Judges case was made by the Honble Supreme Court, the word consultation with its definition was added in Article 260 of the Constitution initially through the Legal Frame Work Order 2002 (Chief Executive Order No.24/2002) which was made part of the Constitution by the Constitution (Seventeenth Amendment ) Act 2003 which is as follows: consultation shall, save in respect of appointments of Judges of the Supreme Court and High Courts, means discussion and deliberation which shall not be binding on the President. 36. In the Constitution various functions have been assigned to the President and among them there are some functions which the President has to perform with consultation namely; under Article 71(4) the President may in consultation of Speaker of National Assembly and Chairman of Senate make rules for conducting of business of Mediation Committee, under Article 72(1), the President after consultation with the Speaker of National Assembly and the Chairman may make rules as to the procedure with respect to joint sittings of and communication between two houses, under Article 101(1) to appoint Governor of each Province after consultation with Prime Minister, under Article 160(1) to appoint persons after consultation with the Governors of the Provinces to constitute National Finance Commission except for the persons who are already designated in this Article, under Article 177 to appoint Judges in the Supreme Court of Pakistan after consultation with the Chief Justice of Pakistan, under Article 193(1) to appoint Judges of the High Court in consultation with the consultees provided in this Article, under Article 200(1) to transfer a Judge of a High Court from one High Court to another High Court after consultation with the Chief Justice of Pakistan and Chief Justices of both High Courts, under Article 203C(4) to appoint a Judge of a High Court after consultation with the Chief Justice of High Court as a Judge of Federal Shariat Court, under Article 203F(3)(b) to appoint in consultation with the Chief Justice two Ulema in Shariat Appellate Bench of Supreme Court, under Article 218(2)(b) to appoint a Judge of High Court from each Province after consultation with the Chief Justice of High Court concerned and with the Commissioner as Member of Election Commission, under Article 235(1) make a proclamation of financial emergency after consultation with the Governors of the Provinces, under Article 243(3) to appoint in consultation with Prime Minister, Chairman Joint Chiefs of Staff Committee, the Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff, under Article 268(2) to accord sanction after consultation with the Prime Minister for altering, repealing or amending the laws specified in the Sixth Schedule. These are the functions which under the Constitution are required to be performed by the President with consultation with the respective authorities as noted above. 37. The definition of the word consultation given in the Constitution is: shall, save in respect of appointment of Judges of the Supreme Court and High Courts, means, discussion and deliberation which shall not be binding on the President. This definition in the first place provides consultation by means of discussion and deliberation in the case of appointment of Judges in the Supreme Court and High Courts and secondly provides saving clause which as a rule is construed to exempt something from immediate interference or destruction. In Understanding Statutes Cannons of Construction, Second Edition by S.M. Zafar at page 114 the learned author has stated thus: Therefore saving is a provision, the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation. Based on such interpretation of saving clause, it can safely be construed that the word consultation as defined in the Constitution with meaning of discussion and deliberation, as an exception has been made binding on the President only in respect of appointment of Judges of Supreme Court and High Courts and it seems to be based on the rational not far to be found i.e. pronouncement of Honble Supreme Court in the Judges case. 38. In view of above state of law as it exists, I have examined the record of recommendations as handed over to the Court by Mr. Nazar Akbar the learned Deputy Attorney General of Pakistan and as noted above, which only comprised of three letters. The Chief Justice of the High Court of Sindh through his letter dated 04.12.2008 has initiated the process of recommendation through addressing the same to the Governor of Sindh. In such letter, detail discussion and reasons have been assigned in support of the recommendations and ultimately it recommended granting of extension of tenure of Additional Judge for a period of one year to respondents No.3 and 5 while it declined to recommend the appointment of respondent No.4 as permanent Judge of this Court. On this recommendation of the Chief Justice of High Court of Sindh, the Governor of Sindh sent his letter of recommendations dated 11.12.2008 to Mr. Justice Agha Rafique Ahmed Khan, the then Federal Law Secretary recommending the appointment of respondent No.3 as permanent Judge of this Court and in respect of respondents No.4 & 5 it recommended granting of extension of term as Additional Judges of this Court for a period of one year. Mr. Justice Abdul Hameed Dogar, the then Chief Justice of Pakistan in his letter dated 12.12.2008 addressed to Mr. Justice Agha Rafique Ahmed Khan the then Federal Law Secretary acknowledged the receipt of the recommendations of Chief Justice of High Court of Sindh and of the Governor of Sindh and noted in his letter the recommendations of the Chief Justice of High Court of Sindh and that of the Governor of Sindh and recommended that the respondent No.3 be appointed as Judge of the High Court of Sindh under Article 193 of the Constitution while the tenure of the respondents No.4 & 5 as Additional Judges be extended for a period of 6 months. It will thus be seen that in the first place the Governor of Sindh has not agreed with the recommendations of the Chief Justice of High Court of Sindh in respect of respondents No.3 & 4 to the extent that the respondent No.3 was recommended by the Chief Justice, High Court of Sindh for granting extension as an Additional Judge for a period of one year while the Governor of Sindh has recommended his appointment as a permanent Judge of the High Court of Sindh while in respect of respondent No.4 the Chief Justice High Court of Sindh has declined to appoint him as permanent Judge but the Governor has recommended granting him extension as Additional Judge for a period of one year. The then Chief Justice of Pakistan agreed with the recommendations of the Governor of Sindh and recommended appointment of respondent No.3 as permanent Judge of the Sindh High Court and granting extension as Additional Judge to respondent No.4 for six months. As regards respondent No.5 both the Chief Justice of High Court of Sindh and the Governor of Sindh had recommended extension as Additional Judge for a period of one year which was curtailed by the then Chief Justice of Pakistan to six months. The President seems to have accepted the recommendation of the then Chief Justice of Pakistan and passed final order resulting in issuing of the impugned notifications. The main feature of the above noted three letters appears to show that although the Chief Justice of High Court of Sindh in his letter has initiated recommendations in respect of respondents No.3 to 5 with detail discussion and assigning reasons in support of his recommendations but in respect of respondents No.3 and 4, it was dissented by the Governor of Sindh and also by the then Chief Justice of Pakistan and the President by making the final order pursuant to which the impugned notifications were issued. There is nothing in the record placed before the Court which may show that either the Governor of Sindh, the then Chief Justice of Pakistan or the President have given reasons for dissenting with recommendations of the Chief Justice of the High Court Sindh or any of them at all consulted the Chief Justice of High Court of Sindh and sought his consensus in making appointment of the respondents No.3 and 4 as it has been done. Whether this manner of consultation between the constitutional consultees for appointment or otherwise of a Judge of a High Court was permissible by the Constitution read with the pronouncement of Honble Supreme Court in Judges case, obviously its answer is not difficult to find that it was not. In the Judges case it was held that none of the consultees/functionaries is less important or inferior to the other and all are important in their respective spheres and the view of none of the consultee can be rejected arbitrarily in a fanciful manner and that the view of Chief Justice of High Court concerned and the Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wish to disagree with their views, it has to record strong reasons which will be justiciable. It was also specifically held in paragraphs (xiii) of the short order of the Judges case that the consultation for appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Article of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultee would be violative of the Constitution and, therefore, invalid. This being the mandate of law, it was mandatory for the President/Executive to have given strong reasons for dissenting with the recommendations of the Chief Justice of the High Court of Sindh or ought to have consulted the Chief Justice of High Court of Sindh for obtaining his consensus in making appointment or otherwise of respondents No.3 and 4. Not an iota of evidence or material has been placed before the Court that any such effort at all was made either by the Governor of Sindh, the then Chief Justice of Pakistan or by the President/Executive. The argument that the President/Executive was bound by the recommendations of the then Chief Justice of Pakistan as a Paterfamilias of the judiciary, apparently seem to over simplify the matter which on its close scrutiny fails to meet the test laid down in the Judges case that in the first place there has to be participatory consultative process between the consultees and also the Executive which should be effective, meaningful, consensus-oriented leaving no room for complaint of arbitrariness or unfair play and that each of the consultee is not less important or inferior to other and views of the none of the consultee can be rejected arbitrarily and if the Executive wish to disagree with a view of a consultee, it has to record strong reasons which will be justiciable and secondly the appointment/ confirmation made without consulting any of the consultee would be violative of the Constitution and therefore, would be invalid. Though in the Judges case it is mentioned that the views of Chief Justice of Pakistan as a Paterfamilias of judiciary will deserve due deference but as observed by His Lordship Verma, J in the case of Supreme Court Advocates on Record Association (supra) that when the recommendation is for appointment to a High Court, and the opinion of Chief Justice of High Court conflicts with that of Chief Justice of India, the non appointment for the valid reasons to be recorded and communicated to the Chief Justice of India would be permissible. Upon this observation His Lordship Ajmal Mian, J in the Judges case observed that It is, therefore, evident that factually it has not been held that the Chief Justices views would have primacy in all matters of recommendations made by him for the appointment of Judges in the superior Courts. The primacy of view of the Chief Justice of India is based on plurality in the process of decision making under the Constitution of India and not as an individual and it is so reflected in the following observation of His Lordship Verma,J, reproduced in the Judges case at page 447: Appointments: (1) What is the meaning of the opinion of the judiciary symbolized by the view of the Chief Justice of India? This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointment in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the view of the senior most Judges of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court, or otherwise. Articles 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary. In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs or the concerned High Court. The Chief Justice of India may also ascertain the views of one of more senior Judges of the High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior most Judges of the High Court. (Emphasis is mine) The Chief Justice of India, for the formation of his opinion, has to adopt a course which would enable him to discharge his duty objectively to select the best available persons as Judges of the Supreme Court and the High Courts. The ascertainment of the opinion of the other Judges by the Chief Justice of India and the Chief Justice of the High Court, and the expression of their opinion, must be in writing to avoid any ambiguity. 39. Under Article 193 of the Constitution of Pakistan for appointment of a Judge in High Court, provides for two judicial consultees, one the Chief Justice of the High Court concerned and the other Chief Justice of Pakistan. Both being equal consultees, their views will prevail with the Executive in the matter of appointment or non appointment of a Judge in a High Court. The views of the Chief Justice of Pakistan as a Paterfamilias of the judiciary, will deserve due deference if the same is also supported by views of the Chief Justice of High Court concerned which has to be evolved through participatory consultative process which should be effective, meaningful, purposive and consensus-oriented. In the event where there is no identity of views between the Chief Justice of High Court concerned and Chief Justice of Pakistan, there would be no binding-ness of the recommendations of the Chief Justice of Pakistan on the Executive and if the Executive accepts the views of the Chief Justice of Pakistan without supporting views of Chief Justice of High Court concerned, the action of the Executive will become justiciable. This is so because in the Judges case it has been consistently held that the views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wish to disagree with their views, it has to record strong reasons which will be justiciable and that a person found to be unfit by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for appointment as a Judge of a High Court cannot be appointed as it will not be a proper exercise of power to appoint under the Articles of the Constitution. Thus there has to be conjunctive views of the judicial consultees to make it binding on the Executive. I am therefore, of the clear view, that by not adhering to the recommendations of the Chief Justice of the High Court of Sindh and by not giving any reasons for such non adherence and without consulting the Chief Justice of the High Court of Sindh, appointing respondent No.3 as a Permanent Judge of this Court and granting 6 months extension as Additional Judge to the respondent No.4 through the impugned notifications was not based upon mandatory consultation as required by the Constitution read with Judges case which provides that there should be participatory consultative process between the consultees and also with the Executive and it should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play and that the views of each of the consultee is binding on the Executive and in case if he wishes to disagree with view of any of the consultee, he is required to give strong reasons for it. 40. It was argued before the Court by the learned Attorney General so also by Mr. Aziz A. Munshi and Mr. Yawar Farooqui that the recommendations of the Chief Justice of Pakistan who being Paterfamilias of judiciary is not justiciable and in this respect relied upon the judgments in the case of Supreme Court Bar Association Vs. Federation of Pakistan (PLD 2002 Supreme Court 939) and the case of Mr. Justice Ghulam Hyder Lakho (Supra). So far the case of Supreme Court Bar Association referred to by the learned Counsel, its facts were altogether different from the present case as it related to the question of appointment of Judges of the Supreme Court of Pakistan only. Article 177 of the Constitution provides that the Judges of Supreme Court shall be appointed by the President in consultation with the Chief Justice. There is thus one judicial consultee in this provision and by the dint of Judges case and the definition of the word consultation in the Constitution, the consultation of the Chief Justice in appointment of Judges in the Supreme Court has been made binding on the President. In appointment of a Judge in the High Court, the Judges case consistently holds that the views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan will be binding on the Executive. The views of the judicial consultees in respect of appointment of a Judge in a High Court has to be expressed by the Chief Justice of Pakistan with the supporting views of the Chief Justice of the High Court concerned which has to be evolved through participatory consultative process to be effective, meaningful, purposive and consensus-oriented. If the recommendations of the Chief Justice of Pakistan are not based on such consultative process, with all due respect and humility, my view is, that such recommendations to the Executive will not be binding and if the Executive accepts such recommendations, it will become justiciable. In the Ghulam Hyder Lakhos case also it was observed that: In view of the above quoted observation of Ajmal Mian, J it is quite clear that the recommendations of the Chief Justice of the High Court and that of Chief Justice of Pakistan are not justiciable. The above quotation will show that non-justiciability is attached to the recommendations of the Chief Justice of High Court and that of Chief Justice of Pakistan expressed conjunctively. 41. As regards the arguments of Mr. Yawar Farooqui that the Additional Judge has a legitimate expectancy of being made a permanent Judge, in the Judges case it was observed as follows: However, in Pakistan, the above Article 197 is on different footing as it inter alia postulates the appointment of an Additional Judge against a permanent vacancy. It is also well-established practice/convention that if an Additional Judge performs his functions during the period for which he was appointed to the satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, he has always been appointed as permanent Judge except in a rare case. In this view of the matter, a person who is appointed against permanent vacancy as Additional Judge in a High Court or if a permanent vacancy occurs during his period as an Additional Judge, he acquires a reasonable expectancy to be considered as a permanent Judge and in case he is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, he is to be appointed as such in the absence of very strong reasons to be recorded by the President/Executive which may be justiciable. Additionally, the Executive, instead of accepting the recommendations of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for permanent appointments without further consulting them, cannot extend the period instead of appointing them on permanent basis as recommended by the two Chief Justices. The reading of the above quotation will amply demonstrates that though there is well established practice/convention of an Additional Judge being appointed against a permanent vacancy has a reasonable expectancy to be considered for appointment as a permanent Judge but such expectancy has been made subject to the satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. If the Chief Justice of the High Court concerned does not recommend the appointment of an Additional Judge as a Permanent Judge, the qualification of reasonable expectancy will not stand, for that in order to take contrary view from the one taken by the Chief Justice of the High Court concerned either strong reasons have to be assigned or his consensus through consultative process is obtained. In the case of Supreme Court Bar Association (supra) which though related to the appointment of Judges in the Supreme Court but while dealing with the argument of legitimate expectancy, the Court observed that the rule of fitness and suitability has an edge over the principle of seniority and legitimate expectancy. 42. Mr. Yawar Farooqui further argued that if the matter of confirmation of an Additional Judge in a High Court is squarely left on the views of the Chief Justice High Court concerned, the Additional Judge may become target of personal like and dislike and therefore, the views of other consultees should not be ignored. Though in substance, the argument has already been addressed by me above but I may usefully reproduce initial part of the para-52 of the judgment in the Judges case which is as follows: 52. I may examine the above issue from the Islamic point of view, I have already held in para 22(vii) on the basis of various Islamic sources that the power to appoint inter alia Judges is a sacred trust, the same should be exercised in utmost good faith, any extraneous consideration other than the merit is a great sin entailing severe punishment. Except for bare argument of personal like and dislike, no instance was quoted by the learned Counsel where the fact of personal like or dislike may find support. 43. At the conclusion of hearing on 06.5.2009 the Court has passed the following short order. We have heard all the learned counsel for the parties, learned Attorney General for Pakistan, learned Advocate General of Sindh and learned Amicus Curiae in the matter. For the reasons to follow later this petition is disposed off in the following terms; 1). The Petition challenging the right to hold office of a judge of this Court is maintainable under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan 1973. 2). As the consultation with regard to the confirmation and or extension of a Judge of the High Court by the President/Executive with the consultees mentioned in the Article 193 and 197 of the Constitution of Islamic Republic of Pakistan 1973 read with definition of Consultation under Article 260 of the Constitution has to be effective, meaningful consensus oriented, purposive and therefore, any appointment, confirmation and or extension in disregard of these principles shall be violative of the Constitution and the well established constitutional conventions shall be invalid. As the above procedure was not adhered to in the matter of confirmation and extension of Respondent No.3 and 4 respectively, we therefore hold that; (a) The confirmation of Respondent No.3 as a Judge of this Court is hereby treated as an extension in his tenure as an additional Judge of this Court as recommended by the Chief Justice of this Court for a period of one year from the date of expiry of his tenure as mentioned in the notification dated 14.12.2007. (b). As regard Respondent No.4 we are of the view tat the Chief Justice of this Court did not recommend his name, hence extension in his tenure being violative of the Constitution is declared invalid. (c). As regard Respondent No.5 there is no disagreement of opinion by and between all the constitutional consultee, therefore the Petition as against Respondent No.5 is dismissed. We however find it necessary to clarify that we have consciously avoided deliberating upon Proclamation of Emergency Order 2007 and the Oath of Judges Order 2007 and its ramifications and consequences firstly for the reasons that the said question is before Honourable Supreme Court and secondly Mr. Rasheed A. Razvi counsel for the Petitioner has not pressed said ground before us for the limited purposes of decision in the instant petition. The above are the reasons for the short order which is to read as part of the judgment. 44. The Court is extremely grateful to M/s. Khalid Anwar, Abdul Hafiz Lakho and Qazi Faez Issa, the learned senior Advocates who appeared as Amicus Curiae and rendered their valuable assistance to the Court in addressing intricate issues raised in this case. 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