IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

Constitutional Bench
Present
Justice Muhammad Ali Mazhar
Justice Naeem Akhter Afghan
Justice Shahid Bilal Hassan
Justice Salahuddin Panhwar
Justice Shakeel Ahmad

Constitution Petitions No. 22, 20, 25 to 28 & 30 of 2025

(Constitutional Petitions U/A 184(3) of the Constitution for declaring
Notification No. F.10 (2)/2024-A.II dated 1st February 2025 regarding
Transfer of Judges to Islamabad High Court as Illegal and
Unconstitutional)

AND

C.M.A.2136/2025 IN C.P.22/2025 and

C.M.A.2137/2025 IN C.P.20/2025 and
C.M.A.2138/2025 IN C.P.26/2025 and
C.M.A.2139/2025 IN C.P.27/2025 and
C.M.A.2047/2025 IN C.P.28/2025
(Stay applications)

Justice Mohsin Akhtar Kayani, & others (In CP 22/25)

Raja Muqsit Nawaz Khan (In CP 20/25)
Imran Khan Niazi (In CP 25/25)
Lahore High Court Bar Association, Lahore (In CP 26/25)
Lahore Bar Association Lahore and another (In CP 27/25)
Karachi Bar Association, Karachi (In CP 28/25)
Riasat Ali Azad and others (In CP 30/25)

..…Petitioners

Versus

The President of Pakistan, Pak Secretariat, (In CPs 22, 26

Islamabad and others to 28 & 30/25)

Federation of Pakistan through, Secretary (In CPs 20 &

Ministry of Law, Justice & Parliamentary Affairs, 25/25)
Islamabad and others
…Respondents

For the Petitioners: Mr. Muneer A. Malik, Senior ASC

Mr. Salahuddin Ahmed, ASC
Syed Rifaqat Hussain Shah, AOR
(In CP 22/25) assisted by Ms. Zainab
Janjua & Ms. Faaiza Qazi, Advocates.

Mr. Idrees Ashraf Malik, ASC

Const.Ps.No.22, 20, 25-28 & 30/2025 -2-

Raja Muqsit Nawaz Khan, ASC

(in CPs 20 & 25/25)

Mr. Hamid Khan, Senior ASC

Mr. Waqar Rana, ASC
Mr. Ajmal Ghaffar Toor, ASC
(in CPs 26 & 27/25)

Mr. Faisal Siddiqi, ASC

Mr. Riasat Ali Azad, ASC
Mr. Anis Muhammad Shahzad, AOR
Assisted by Mr. M. Ammar Rafique &
Sikandar
Naeem Qazi, Advocate (in CPs 28 &
30/25)

For the Respondents:

For the Federation Mr. Mansoor Usman Awan, AGP

Ch. Aamir Rehman, Addl. AGP
Raja Shafqat Mehmood Abbasi, DAG

President of Pakistan, Mr. Muhammad Amir Malik, AOR

Registrar SCP & Assisted by: Mr.Hasan Mehmood,
Secretary JCP Legislative Advisor, M/O Law, Ms.
Mariyam Ali Abbasi & Mr. Saad Javed
Satti, Advocates

For Province of Punjab: Mr. Muhammad Amjad Pervaiz, AG

Mr. Waseem Mumtaz Malik, Addl. AG
Rao Muhammad Aurangzeb, Asstt. AG
Assisted by: Mr. Muhammad Adil
Chattha, Sr.Consultant

For Province of Sindh: Mr. Suresh Kumar, Addl. AG

Mr. Sibtain Mehmood, Addl. AG
& Barrister Zeeshan Adhi, Addl. AG
Mr. Shah Faisal Ilyas, Addl. AG

For Province of KPK: Mr. Shah Faisal Ilyas, Addl. AG

For Province of Mr. Muhammad Ayaz Swati, Addl. AG

Balochistan: Mr. Tahir Iqbal Khattak, Addl. AG

For ICT: Mr. Ayyaz Shaukat, AG

Dr. Mirza Muhammad Usman, AOR

For the Registrar LHC: Mr. M. Shahid Latif Khan, Dy. Registrar

For the Registrar PHC: Mr. Wajid Ali Khan, Director

(Regulations)
(via video link from Peshawar
Const.Ps.No.22, 20, 25-28 & 30/2025 -3-

For the Registrar SHC: Mr. Sohail Muhammad Laghari,

Registrar
(via video link from Karachi)

For the Registrar IHC: Mr. M. Asif Iqbal, Dy. Registrar

For the Transferee Nemo

Judges:

Dates of Hearing: 14th, 17th, 22nd, 29th, 30th April; 07th,

08th, 14th, 15th, 19th, 20th, 21st, 23rd,
26th, 27th, 29th May and 16th June to
19th June, 2025.

Judgment in Majority

Index

I. Preamble

II. Background and Key Facts

III. Counsel for Petitioners: Arguments and Submissions

IV. Arguments of Respondents

V. Points for determination

VI. Point-to-point Discussion, Analysis and Decision

1. Scope and Validity of Article 200 Transfers vis-à-vis

Article 175A of the Constitution

2. Constitutional Requirements of Consent and

Consultation

3. Scope & Interpretation of Section 3 of the

Islamabad High Court Act, 2010

4. Public Interest & Judicial Independence

Considerations

5. Seniority and Terms of Transfer

VII. Letter of Six Judges

Const.Ps.No.22, 20, 25-28 & 30/2025 -4-

Muhammad Ali Mazhar-J

I. Preamble

The bone of contention in the aforesaid Constitution Petitions,

filed under Article 184(3) of the Constitution of the Islamic
Republic of Pakistan, 1973 (“Constitution”), is the Notification
No.F.10 (2)/2024-A.II, dated 01.02.2025 issued by the President
of Pakistan (“President”) in exercise of powers conferred under
Article 200 of the Constitution for the transfer of certain Judges
to the Islamabad High Court (“IHC”). All the petitioners, in one
voice, seek a declaration that the said notification is
unconstitutional. Since Constitution Petition No.22 of 2025 has
been filed by five sitting learned Judges of the Islamabad High
Court in personam, assailing, inter alia, the upsetting of their
seniority reckoned before the transfer, their petition is treated as
the leading petition, and the rest proceed conjointly.

II. Background and Key Facts

2. On 1st February 2025, the Law Ministry issued the impugned

notification transferring three serving Judges from provincial
High Courts to the IHC. The transferee Judges are Mr. Justice
Sardar Muhammad Sarfraz Dogar of the Lahore High Court
(“LHC”), Mr. Justice Khadim Hussain Soomro of the Sindh High
Court (“SHC”), and Mr. Justice Muhammad Asif of the
Balochistan High Court (“BHC”). These transfers filled existing
vacancies in the IHC without exceeding its sanctioned strength
(one Chief Justice and twelve other Judges as prescribed by the
Islamabad High Court Act, 2010). As a result of the notification,
Justice Dogar joined the IHC and as its Senior Puisne Judge. The
five learned IHC Judges (petitioners in Const.P.22/2025)
challenged the transfers as an encroachment on their seniority
and on the internal autonomy of the IHC. Several Bar
Associations, including the Lahore High Court Bar Association
(Const.P.26/2025), Lahore Bar Association (Const.P.27/2025),
Karachi Bar Association (Const.P.28/2025) as well as individual
lawyers and litigants such as Raja Muqsit Nawaz Khan, Advocate
Const.Ps.No.22, 20, 25-28 & 30/2025 -5-

(Const.P.20/2025) and Mr. Imran Khan Niazi, (Const.P.25/2025)

joined the fray, echoing concerns about the constitutionality of
the transfers.

III. Counsel for Petitioners: Arguments and Submissions

Mr. Muneer A. Malik, Senior ASC

(for Petitioners in Const.P.22/2025)

3. Learned counsel Mr. Muneer A. Malik (assisted by Barrister

Salahuddin Ahmed, ASC) appeared for the five petitioner Judges
of the IHC. At the outset, he stressed that this case is
unprecedented: “there is no precedent in the past for a permanent
transfer of a Judge from one High Court to another”, making it a
first-of-its-kind matter requiring careful constitutional scrutiny.
He submitted that Article 200 of the Constitution, if properly
construed, allows only temporary transfers of High Court Judges,
which is essentially a short-term deputation, and does not
envisage permanently relocating a Judge in a manner that
effectively vacates his original seat. A “permanent” transfer
would encroach upon Article 175A, which establishes the
Judicial Commission of Pakistan (“JCP”) for appointments to
superior courts. In his submission, transferring a Judge to fill a
vacant judgeship in another High Court bypasses the JCP’s
constitutional mandate for making a fresh appointment to that
vacancy, thereby rendering Article 175A ineffective if such
transfers are permitted without the JCP’s involvement.

3/1. He further submitted that historically Article 200 had been

used sparingly and only for short tenures, precisely to avoid
undermining the appointments process and the stability of
tenure. There exists no precedent for a permanent transfer of a
judge from one High Court to another in Pakistan’s judicial
history. It was further averred that if Article 200 is assumed to
permit such transfers, the manner in which it was invoked here
violated the requirement of effective or meaningful
consultation with the relevant judicial authorities. He
emphasized that under Article 200, consultation with the Chief
Justice of Pakistan (“CJP”) and the Chief Justices of both the
Const.Ps.No.22, 20, 25-28 & 30/2025 -6-

transferring and recipient High Courts is mandatory. This

consultation, as per longstanding jurisprudence, must be real,
substantial and meaningful, and not a mere formality. Learned
counsel pointed out that the concept of consultation in judge-
related matters has been elaborated in the Judges’ Case
precedents (Al-Jehad Trust Vs. Federation of Pakistan (PLD 1996
SC 324) and the President’s Reference No.2 of 1996 reported as
(PLD 1997 SC 84)) whereby it was held that the consultees’
opinion should be given due weight and be ordinarily accorded
primacy absent strong reasons.

3/2. Mr. Malik further argued that in the present case, the
consultation process was tainted since critical information was
withheld or misrepresented to those being consulted. He further
argued that by administrative arrangement, Justice Dogar, a
transferee from LHC who was a junior there, was placed at the
top of the IHC seniority list as Senior Puisne Judge, superseding
IHC’s existing judges in seniority. The learned counsel also
referred to the case of Muhammad Aslam Awan v. Federation of
Pakistan, (2014 SCMR 1289) in which it was held that if two
officials are appointed on the same date, the older in age ranks
senior. It was further contended by the learned counsel that the
transferee judges should have taken a fresh oath and upon
joining their seniority, they should have been reckoned at the
bottom from the date they take oath. Reinforcing the principle of
independence, he argued that the manner and timing of these
transfers gave rise to a reasonable perception that they were not
done for bona fide institutional needs but possibly to influence
the composition and leadership of the IHC, especially in light of
certain events. In this context, he alluded to a letter dated 25th
March 2024, authored by a group of IHC Judges (including some
petitioners) complaining of interference by the executive and the
establishment in the judicial matters.

3/3. It was further averred that the transfer is not only against
the public interest but it also undermines the independence of
the judiciary, violating due process, and denying equal protection
to the affected Judges. He also cited the case of Sharaf Faridi
Const.Ps.No.22, 20, 25-28 & 30/2025 -7-

case (PLD 1989 SC 404 and PLD 1994 SC 105) wherein the
superior courts recognized that executive actions impacting the
judiciary must be assessed in light of the constitutional mandate
to secure an independent judiciary that is free from extraneous
pressure or retribution.

Mr. Idrees Ashraf, ASC

(for Petitioners in Const.P.20 & 25 of 2025)

4. The learned counsel while adopting Mr. Malik’s arguments

added that any exercise of the President’s power under Article
200 must be anchored in demonstrable public interest and
necessity, for instance, to meet an urgent need or extraordinary
circumstance in the transferee High Court and not
for extraneous or whimsical reasons.

4/1. He further contended that the President failed to identify

any legitimate public interest rationale for suddenly transferring
three judges to the IHC. There was no crisis or functional
breakdown in the IHC warranting emergency measures; rather,
the transfers were effected in undue haste. It was further avowed
that the notification was silent on critical parameters of the
transfer, notably its duration and terms. According to him,
Article 200 permits transfers on temporary basis. Hence, the
transferred Judges should be treated as freshly appointed and
should not leapfrog existing judges.

4/2. The learned counsel further argued that the petitioner (Mr.
Imran Khan Niazi) is a frequent litigant in the IHC and is
concerned that altering the IHC’s composition through executive
fiat could affect pending cases. Counsel suggested that the
transfers had the appearance of court-packing or tailoring the
bench, which erodes public confidence in the judiciary’s
impartiality.

Mr. Hamid Khan, Sr. ASC

(for Petitioners in Const.P.26 & 27 of 2025)

5. The learned Sr. Advocate Mr. Hamid Khan represented two

Bar Associations (Lahore High Court Bar and Lahore Bar
Const.Ps.No.22, 20, 25-28 & 30/2025 -8-

Association) who challenged the Judges’ transfer on behalf of the

legal fraternity. He forcefully advanced the theme that
the independence of the judiciary is a foundational principle
recognized in numerous Supreme Court pronouncements. He
began by drawing the following comparison: though the
Constitution of India allows the transfer of High Court judges
without their consent, in Pakistan, a Judge’s consent is a
constitutional requirement for the transfer.

5/1. He further argued that the presence of the consent clause in

Article 200 is not a technicality but a key buffer against executive
overreach; no Judge can be uprooted from a High Court against
his will. In the case at hand, he acknowledged, the transferred
Judges did ostensibly give consent. However, the conditions
surrounding that consent warranted scrutiny whether the
Judges were pressured or misled? It was further contended that
the transfer was made with unusual haste and opaqueness. The
proposal moved swiftly through the corridors of power with
minimal disclosure, fueling suspicions of a predetermined
agenda. He alleged that the real motive was to elevate Justice
Dogar to take charge of the IHC, whereas the transfer of two
other Judges alongside was merely symbolic to give an
appearance of even-handedness. In fact, counsel contended, the
entire exercise was a misuse of Article 200 that aimed to install a
favored individual as IHC Chief Justice. On
the consultation aspect, he reinforced that meaningful
consultation with all stakeholders, the CJP and the concerned
Chief Justices, was indispensable. He argued that the transfer
decision lacked the requisite consensus-oriented
consultation mandated by law. He further argued that the Chief
Justices of the SHC and BHC, from whose courts judges were
taken, were ostensibly consulted but their views were not made
public or perhaps not accorded due weight.

5/2. To fortify his stance, Mr. Hamid Khan referred to Al-Jehad

Trust case (1996) and argued that the independence of judiciary
is part of the basic constitutional framework and parachuting a
junior judge into a new jurisdiction to make him de facto senior
Const.Ps.No.22, 20, 25-28 & 30/2025 -9-

is equally offensive to the seniority convention upheld in Malik

Asad Ali v. Fed. of Pakistan (1998) and Muhammad Anwer
Khan’s Case (PLD 1998 SC 33). Additionally, the learned
counsel highlighted Rule 15-A of the Rules of Business, 1973,
which delineates the procedure for submission of cases to the
Prime Minister and President. He contended that matters of
judges’ appointments and transfers fall under the special
category requiring prior approval of the Prime Minister and
careful processing in the Cabinet. According to the learned
counsel, the matter of transfer should have been approved by the
Federal Cabinet.

Mr. Faisal Siddiqi, ASC

(for Petitioners in Const.P.28 & 30 of 2025)

6. The learned counsel focused on the perspective of the Bar and

litigant public. He stressed that public confidence in the
judiciary is paramount and it hinges on the perception that
judges are appointed and assigned to courts based on merit and
transparent criteria, not due to executive favoritism or
machinations behind closed doors. From the standpoint of the
Bar, the February 2025 transfers appeared to be a fait
accompli that sprung without prior consultation even with the
concerned Bar Associations or the Judiciary itself. Mr. Siddiqi
argued that Article 200 must be read subject to the
Constitution’s fundamental guarantees and the overall
appointment scheme.

6/1. He echoed that Section 3 of the Islamabad High Court Act,

2010, requiring IHC judges to be appointed from among all
provinces and territories, presupposes the normal appointment
process. He contended that if one were to interpret Section 3 in
context, it envisions a diverse composition of the IHC bench to
reflect the federation, which can be achieved by the JCP when
making new appointments. He also referred to Justice Fazal
Karim’s treatise on Judicial Review and passages from Corpus
Juris Secundum and Halsbury’s Laws for emphasizing
that constitutional provisions should be read so as to give each
Const.Ps.No.22, 20, 25-28 & 30/2025 -10-

force and effect, rather than allowing one to nullify the other. If
two provisions seem to cover related subject matter (Article 175A
on appointments and Article 200 on transfers), the Court should
strive for an interpretation that avoids conflict and redundancy.
Article 200 should not be misused to do what Article 175A
demands and conversely, the existence of Article 175A does not
impliedly repeal Article 200, as each has a distinct sphere. The
correct view, in his submission, is to preserve Article 200 as a
“standalone” power but circumscribe its use to genuine transfer
scenarios, not de facto appointments.

6/2. Regarding consultation, the learned counsel argued that the

consultation under Article 200 must be conscientious, open-
minded and informed. He further argued that consultation is not
a mere procedural checklist but a substantive requirement that
tempers the President’s power with judicial input. He also
referred to the High Court Judges (Leave, Pension and Privileges)
Order, 1997 (President’s Order No.3 of 1997) which in fact
anticipates the scenario of transfers by providing in Article 25 for
a “transfer allowance” and related privileges for a Judge who is
transferred which according to the learned counsel indicates that
while transfers are contemplated, they are considered significant
events with logistical and financial implications for the Judge.
This further underlined that such decisions should not be
sprung upon a Judge without due deliberation and planning.

IV. Arguments of Respondents

Attorney-General (AGP)

7. The learned Attorney-General (“AGP”) Mr. Mansoor Usman

Awan argued that the President’s power under Article 200 is
an integral part of the Constitution’s design, co-existing with
Article 175A, and was in fact left untouched by the post-2010
amendments. He submitted that Articles 200 and 175A operate
in distinct domains, the former dealing with transfers of serving
Judges between High Courts, and the latter dealing with
appointments as Judges of the superior courts. He drew a clear
Const.Ps.No.22, 20, 25-28 & 30/2025 -11-

distinction in the constitutional text and argued that Article 200

uses the term “transfer” and explicitly requires the Judge’s
consent and consultation with judicial authorities, whereas
Article 175A uses “appointment” and establishes a multi-step
selection process through the JCP. The presence of both
provisions side by side in the Constitution evidences the framers’
intent that both mechanisms remain available for different
situations, without one overriding the other.

7/1. It was further contended that a transferred Judge does not

take a fresh oath but takes oath of office at the time of his
original appointment as a High Court Judge. Therefore, treating
the transfer as synonymous with a new appointment would
render Article 200 redundant. According to AGP, at the time of
transfers, the Islamabad High Court was functioning with a
significantly reduced bench and faced a growing docket. Instead
of waiting for the lengthy process of fresh appointments via the
JCP, which involves inviting nominations, scrutiny, committee
approval, etc., often taking many months, the Executive, in
consultation with the CJP, opted for the expeditious route of
transfer to immediately bolster the IHC.

7/2. He maintained that it was a bona fide decision in the public

interest, aimed at ensuring that justice in the Islamabad Capital
Territory would not suffer for want of sufficient Judges. The
choice of one Judge each from three different High Courts
(Punjab, Sindh, Balochistan) also ensured a mix of backgrounds
and satisfied, in substance, the diversity principle of Section 3 of
the IHC Act, 2010. The AGP underscored that the transfer from
one High Court to another can only be made within the
sanctioned strength of the transferee court, and here the IHC’s
sanctioned strength of 12 judges was not exceeded. Addressing
the consultation, the learned AGP submitted that the
constitutional requirements were fully met in this case. Each of
the three Judges gave their written consent to being transferred,
as evidenced by their letters on record. There is no allegation that
any Judge’s consent was coerced. Rather, the President, through
the Ministry of Law and Justice, consulted all the relevant
Const.Ps.No.22, 20, 25-28 & 30/2025 -12-

constitutional consultees. Article 200’s consultation mechanism,

in fact, shields judicial independence by ensuring that no
transfer can happen if the judiciary dissents.

7/3. On the issue of public interest and motive, the learned AGP
categorically denied any malice or punitive intent behind the
transfers. He further averred that no mala fide can be inferred
against high constitutional functionaries. The petitioners’
allegations of malice were not supported by concrete evidence; no
official document or admission indicates any motive other than
filling vacancies at IHC. Coming to the question of seniority, the
AGP argued that the seniority of transferee judges shall be
reckoned from the date of their appointment. He also referred to
the principle laid down in the case of Muhammad Aslam Awan’s
case (2014 SCMR 1289) and PLD 2019 SC 509 regarding
reckoning of seniority from oath date would likely apply, subject
to any specific rules that may be framed.

Advocate General, Punjab

8. Mr. Muhammad Amjad Pervaiz, learned Advocate General,

Punjab, while adopting the arguments of learned Attorney
General, added that the transfer is not a new notion under the
provisions of Constitution. He further argued that no prejudice is
caused to judicial independence. Rather, the mechanism of
consent and consultation in Article 200 itself guards against
executive overreach. It was further averred that the instant
matter is a case of first impression as to the import and scope of
Article 200. It was further averred that since there is no case law
available on the issue in question, hence, a need has arisen to
trace the legislative history and previous practice in Pakistan
dealing with this issue of seniority in situations other than
Article 200 in case of transfer of Judge from one High Court to
another. He concluded that a Judge of a High Court retains his
seniority and takes it along with him to any High Court or forum
he goes. This has been consistent practice since 1955 and thus
the same has assumed the character of Constitutional
Convention.
Const.Ps.No.22, 20, 25-28 & 30/2025 -13-

V. Points for determination

9. Upon appraisal of the pleadings, the voluminous record, and

the rival submissions, the pivotal points for determination by this
Court are framed as follows:

1. Scope and Validity of Article 200 Transfers vis-

à-vis Article 175A of the Constitution:

Whether the President’s power to transfer a Judge of

a High Court to another High Court under Article 200
of the Constitution remains a standalone and
independent power for transfer of High Court judges
after the 18th Amendment (which introduced Article
175A for judicial appointments), and to what extent
Article 175A limits, implicates or overlaps with the
exercise of Article 200. In essence, can a transfer
under Article 200 be carried out without recourse to
the JCP mechanism, and does such a transfer
amount to or require a “fresh appointment” within
the meaning of Article 175A?

2. Constitutional Requirements of Consent &

Consultation:

Whether in the impugned notification the mandatory

pre-conditions of Article 200 have been satisfied in
letter and spirit. Subsidiary questions include what
constitutes “meaningful consultation” in this context,
and whether any deficiency in consultation or
consent would vitiate the transfer?

3. Scope & Interpretation of Section 3 of the

Islamabad High Court Act, 2010:

Whether the transfer of Judges from provincial High

Courts to the IHC violates Section 3 of the Islamabad
High Court Act 2010. Does this statutory provision
forbid the induction of judges by transfer as opposed
to fresh appointment?

4. Public Interest & Judicial Independence

Considerations:

Whether the impugned transfers, in their purpose or

effect, contravened the public interest and
independence of the judiciary?

5. Seniority and Terms of Transfer:

What is the proper legal regime for determining the

seniority of High Court Judges and tenure of
transfer/nature under Article 200? Should the
transferee Judges rank as per their original
appointment dates, or by their transfer date and
whether their transfers requires fresh oath?
Const.Ps.No.22, 20, 25-28 & 30/2025 -14-

6. Letter of Six Judges

Effect of letter of six judges communicated to the

former Chief Justice of Pakistan complaining the
interference and pressure by the executive and
agencies in the judicial functions.

VI. Point-to-point Discussion, Analysis and Decision

1. Scope and Validity of Article 200 Transfers

vis-à-vis Article 175A of the Constitution:

10. Since the predominant question is revolving around the

interpretation and niceties of Article 200 of the Constitution,
therefore, it would be expedient for the ease of reference to
reproduce it as under:-

“200. (1) The President may transfer a Judge of a High

Court from one High Court to another High Court, but no
Judge shall be so transferred except with his consent and
after consultation by the President with the Chief Justice
of Pakistan and the Chief Justices of both High Courts.
Explanation— In this Article, "Judge" does not include a
Chief Justice but includes a Judge for the time being
acting as Chief Justice of a High Court other than a Judge
of the Supreme Court acting as such in pursuance of a
request made under paragraph (b) of Article 196.
(2) Where a Judge is so transferred or is appointed to an
office other than that of Judge at a place other than the
principal seat of the High Court, he shall, during the
period for which he serves as a Judge of the High Court to
which he is transferred, or holds such other office, be
entitled to such allowances and privileges, in addition to
his salary, as the President may, by Order, determine.
(3) If at any time it is necessary for any reason to increase
temporarily the number of Judges of a High Court, the
Chief Justice of that Court may require a Judge of any
other High Court to attend sittings of the former High
Court for such period as may be necessary and, while so
attending the sittings of the High Court, the Judge shall
have the same power and jurisdiction as a Judge of that
High Court:

Provided that a Judge shall not be so required except with

his consent and the approval of the President and after
consultation with the Chief Justice of Pakistan and the
Chief Justice of the High Court of which he is a Judge.

Explanation: In this Article, "High Court" includes a Bench

of a High Court”.
Const.Ps.No.22, 20, 25-28 & 30/2025 -15-

10/1. It is clearly articulated under Article 200 of the

Constitution that the powers of the President for the transfer of a
Judge of the High Court from one High Court to another High
Court is an independent Article in its application but with some
safety measure and safeguards and these powers are not
dependent upon any other Article of the Constitution. However,
the punch line or litmus test is that before exercising such
powers of transfer of judges, the President has to seek out the
consent of the judge intended to be transferred from one High
Court to another. The most important is the second limb, that is,
the consultation process by the President with the Chief Justice
of Pakistan and the Chief Justices of both High Courts. It is
further provided in sub-article (2) that where a Judge is so
transferred or is appointed to an office other than that of Judge
at a place other than the principal seat of the High Court, he
shall, during the period for which he serves as a Judge of the
High Court to which he is transferred, or holds such other office,
be entitled to such allowances and privileges, in addition to his
salary, as the President may, by Order, determine. In case of
exigency, sub-article (3) also allows to increase temporarily the
number of Judges of a High Court, whereby the Chief Justice of
that Court may require a Judge of any other High Court to attend
sittings of the former High Court for such period as may be
necessary which can be done with the consent of such judge and
the approval of the President after consultation with the Chief
Justice of Pakistan and the Chief Justice of the High Court of
which he is a Judge.

10/2. Whereas Article 175A of the Constitution is germane to the

appointment of Judges to the Supreme Court, High Courts, and
the Federal Shariat Court by the JCP, at first sight, both are two
distinct and separate provisions dealing with two widely
divergent situations without overlapping or overriding each other.
The transfer of a judge by the President of Pakistan by means of
Article 200 of the Constitution (permanently or temporarily)
cannot be deduced as a fresh appointment expressly or tacitly.
What's more, the powers of transfer bestowed to the President by
Const.Ps.No.22, 20, 25-28 & 30/2025 -16-

the framers of the Constitution cannot be obliterated or

disregarded on the ground as to why the vacant posts were not
filled up by JCP through fresh appointments rather than
transfer. If it is reckoned or envisaged that all posts should be
filled by the JCP alone through fresh appointments and not
through transfer by the President, then such interpretation will
not only contradict the discernible purpose and objective of the
framers of the Constitution but will also invalidate the bedrock
and substance of Article 200 of the Constitution which is
unequivocally an independent right and power not
interconnected or interrelated with the life-force of Article 175A of
the Constitution. Rather, it is a standalone provision specifically
dealing with the exigencies of the transfer of judges of a High
Court (permanently or temporarily) which cannot be reckoned a
fresh appointment which is the sense of duty JCP inherently and
unreservedly in terms of Article 175A of the Constitution and has
nothing to do with the transfer of High Court Judges from one
High Court to another. Furthermore, we have no hesitation in
our mind to fervently hold that the transfer of a judge from one
High Court cannot deemed to be a fresh appointment to the office
but the status of a transferee judge remains the same as
appointed primarily under Article 193 of the Constitution and
mere change of venue does not alter his original engagement but
a reallocation of an existing resource.

10/3. The golden rule of statutory interpretation provides that

the words used should be interpreted harmoniously and
congenially in line with the intention of the legislature and all the
provisions should be read in unison, for the reason that the
foremost stratagem of this doctrine is to preserve the effect of the
statute within the precincts of law and within the dominion of
Constitution, provided that the statute is mute and/or
inarticulate and is capable of more than one interpretation. While
interpreting the Constitution, it is to be read as a whole without
obliterating or annihilating the other provisions to ensure the
rule of harmony. To understand its primordial and elemental
commandments, and the language used in various Articles, it is
Const.Ps.No.22, 20, 25-28 & 30/2025 -17-

necessary to consider the historical background and the textual

and structural substratum for its literal interpretation with
liberal enforcement. It is a well settled exposition of law that a
written constitution is, in essence, a form of statute which needs
to be interpreted liberally and read holistically as an organic
document which contemplates the trichotomy of powers between
the three organs of the State, namely, the Legislature, the
Executive, and the Judiciary. The doctrine of pith and substance
places considerable emphasis on figuring out the distinct
attributes of constitutional provisions, and the doctrine of
purposive interpretation lays down a duty upon the Courts to
interpret the statute or the Constitution keeping in mind the
purposefulness for which the provision in question was legislated
while adopting a result-oriented approach, rather than
construing it in a restrictive or stringent sense. According to
Salmond on Jurisprudence (12th ed.) by P. J. Fitzgerald, M.A., at
page 132, interpretation or construction is the process by which
the courts seek to ascertain the meaning or intention of the
legislature through the medium of the authoritative forms in
which it is expressed. The concept of purposive interpretation
places an obligation upon the Courts to interpret the statute or
the Constitution keeping in mind the purposefulness for which
the provision in question was legislated with a dynamic and
result oriented approach rather than construing it in a restrictive
or stringent sense and should be vetted under the doctrine of
harmonious interpretation which is akin to the notion of an
extensive approach within the basic structure and constitutional
scheme. It is well settled principle that redundancy cannot be
attributed to any provision of the Constitution rather in case of
any conflict in two provisions, the rule of harmonious
interpretation is to be followed.

10/4. The fundamental principles guide the superior courts in

construing the constitutional provisions to maximize their
intended effect and ensure the enduring dispensation of
constitutional justice. The Doctrine of Harmonious Construction
stands as a cardinal principle, enjoying pervasive application
Const.Ps.No.22, 20, 25-28 & 30/2025 -18-

across the diverse landscape of constitutional jurisprudence. The

Oxford English Dictionary defines a constitution as "a body of
fundamental principles or established precedents according to
which a state or organization is governed". The Collins Dictionary
says a constitution consists of "the fundamental principles on
which a state is governed, especially when considered as
embodying the rights of subjects". Constitutional interpretation
entails evaluating the text, structure, history, and underlying
principles of a constitution to determine its interpretation and
scope, and to drive the formation of legal doctrine and
precedents. The general rules of interpretation of the
Constitution are: the words must be given full effect if they are
clear and unambiguous; the Constitution must be read in its
entirety; harmonic construction principles should be used; the
Constitution must be interpreted liberally; the court must
determine the intent of the constitution by looking beyond its
literal words; when interpreting, it's acceptable to use both
internal and external help and all other laws are subordinate to
the Constitution whereas the guiding principles and modes of
interpretation to approach and decipher literal interpretation of
constitutional text (Textualism); emphasis on purpose and spirit
of the Constitution (Purposivism); some constitutional principles
are inviolable (Basic Structure) and avoiding conflict among
different constitutional provisions (Harmonious Construction).

10/5. Professor Richard H. Fallon has, in his celebrated work “A

Constructivist Coherence Theory of Constitutional
Interpretation”, 100 HARV. L. REV. 1189, 1189-90 (1987),
identified five different strands of interpretative considerations:
Arguments from the plain, necessary, or meaning of the
constitutional text; arguments about the intent of the framers;
arguments of constitutional theory that reason from the
hypothesized purposes that best explain either particular
constitutional provisions or the constitutional text as a whole;
arguments based on judicial precedent; and value arguments
that assert claims about justice and social policy. In the case
of Hunter v. Southam Inc: [1984] 2 SCR 145, the Supreme
Const.Ps.No.22, 20, 25-28 & 30/2025 -19-

Court of Canada, expounded the principle pertaining to

constitutional interpretation as under:-

“The task of expounding a constitution is crucially different from that

of construing a statute. A statute defines present rights and
obligations. It is easily enacted and as easily repealed. A constitution,
by contrast, is drafted with an eye to the future. Its function is
to provide a continuing framework for the legitimate exercise of
governmental power and, when joined by a Bill or a Charter of Rights,
for the unremitting protection of individual rights and liberties. Once
enacted, its provisions cannot easily be repealed or amended. It must,
therefore, be capable of growth and development over time to meet
new social, political and historical realities often unimagined by its
framers. The judiciary is the guardian of the constitution and must, in
interpreting its provisions, bear these considerations in mind.
Professor Paul Freund expressed this idea aptly when he admonished
the American courts 'not to read the provisions of the Constitution like
a last will and testament lest it become one”.

10/6. Seemingly the errand of elucidating and rationalizing

a Constitution is stringently distinct from that of interpreting a
statute, for a statute defines present rights and obligations and is
easily enacted and as easily repealed and where two provisions in
legislation are in such disagreement with each other that both of
them cannot stand together, it is possible that they should be so
read that effect can be given to both because it will not be a
viable option to embrace a construction that renders both of
them ineffective and useless. A Constitution is drafted with an
eye to the future and its function is to provide a continuing
framework for the legitimate exercise of governmental power and
each provision of it has to be given meaningful and dynamic and
vigorous interpretation rather than making it antediluvian or
superfluous.

10/7. The Doctrine of Harmonious Construction is based on a

cardinal principle in law that every statute has been formulated
with a specific purpose and intention and thereby should be read
as a whole and essence is to give effect to both the provisions. To
avoid conflict, the adopted “interpretation of the statute” should
be consistent with all its provisions. For the ease of reference
some local and foreign judicial precedents on doctrine of
harmonious construction are as under:-

1. Hamza Rasheed Khan versus Election Appellate Tribunal,

Lahore and others (PLD 2024 Supreme Court 1028)
(Overruling of Sami Ullah Baloch case PLD 2018 SC 405): The
judgment emphasizes the principle of harmonious
Const.Ps.No.22, 20, 25-28 & 30/2025 -20-

interpretation of constitutional provisions, stating that the

Constitution should be read as an organic whole and its
provisions, especially those closely related to each other, are to
be harmoniously reconciled instead of making out
inconsistencies between them---One constitutional provision
cannot, unless expressly so provided, override the other nor can
one be so construed as to destroy the other but rather both are
to be construed harmoniously, each sustaining the other.

2. Reference No. 1 of 2020, (secrecy of ballot in Senate elections

in Pakistan (PLD 2021 Supreme Court 825). The Court
emphasized that the Constitution is an organic whole and no
provision should be interpreted in isolation. The meaning must
be gathered from the Constitution as an integrated whole.

3. Lahore Development Authority versus Ms. Imrana Tiwana

and others (2015 SCMR 1739). One constitutional provision
cannot, unless it is so specifically provided, override another
and must be harmoniously construed together, as repeatedly
held by this Court: Ref: Hakim Khan v. Government of Pakistan
(PLD 1992 SC 595); Kaneez Fatima v. Wali Muhammad (PLD
1993 SC 901); Zaheeruddin v. The State (1993 SCMR 1718); Al-
Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324);
Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005
SC 719); Raja Muhammad Afzal v. Government of Pakistan
(PLD 1998 SC 92) and Wukala Mahaz Barai Tahafaz Dastoor v.
Federation of Pakistan (PLD 1998 SC 1263).

4. District Bar Association, Rawalpindi versus Federation of

Pakistan (PLD 2015 Supreme Court 401). The Constitution
contains a scheme reflecting its Salient Features which define
the Constitution. Such Salient Features are obvious and self-
evident upon a harmonious and holistic interpretation of the
Constitution. In an effort to discover such Salient Features
material outside the Constitution cannot be safely relied upon.

5. Case regarding pensionary benefits of the Judges of superior

courts from the date of their respective retirements, irrespective
of their length of service as such judges (PLD 2013 Supreme
Court 829). The entire Constitution has to be read as an
integrated whole. No particular provision should be so
construed as to destroying the other, but each sustaining the
other provision. This is the rule of harmony, rule of
completeness and exhaustiveness.

6. Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and

others versus General Pervez Musharraf, Chief Executive and
others (PLD 2002 Supreme Court 853). The Court observed
that the principles for interpreting Constitutional documents as
laid down by this Court are that all provisions should be read
together and harmonious constructions should be placed on
such provisions so that no provision is rendered nugatory.

7. Abdul Razzaq Khokhar versus Province of Punjab and others

(1990 SCMR 183). This Court, in this judgment, emphasized
the principle of harmonious interpretation for incorporated
laws. This means that when one law incorporates another, they
should be read together to give consistent meaning to all
relevant provisions.

8. Hafiz Abdul Waheed versus Mrs. Asma Jehangir and another

(PLD 2004 Supreme Court 219). The Court held that it is
well-settled that the Court will lean in favour of harmonious
interpretation of the statutes/various provisions and would
certainly avoid an interpretation which has the potential of
Const.Ps.No.22, 20, 25-28 & 30/2025 -21-

conflicting judgments or pitching one Constitutional Court

against another.

9. Johnson vs. Moreton [(1978) 3 All. ER 37] & Stock vs.

Frank Jones (Tipton) Ltd. [(1978) 1 All. ER 948]. In selecting
out of different interpretations the Court will adopt that which
is just reasonable and sensible rather than that which is none
of those things, as it may be presumed that the legislature
should have used the word in that interpretation which least
offends our sense of justice.

10. Commissioner of Income Tax Vs Hindustan Bulk Carriers,

(2003) 3 SCC 57, P. 74]. The Court laid down following
principles of rule of harmonious construction: the Courts must
avoid a head on clash of seemingly contradicting provisions and
they must construe the contradictory provisions so as to
harmonize them. ["Commissioner of Income Tax Vs Hindustan
Bulk Carriers", (2003) 3 SCC 57, P. 74]. AIR (2003) SC 3942;
the provision of one section cannot be used to defeat the
provision contained in another unless the Court, despite all its
effort, is unable to find a way to reconcile their differences;
when it is impossible to completely reconcile the differences in
contradictory provisions, the Courts must interpret them in
such as way so that effect is given to both the provisions as
much as possible. Sultana Begum Vs Premchand Jain--AIR
1997 SC 1006, Pages 1009, 1010]; Courts must also keep in
mind that interpretation that reduces one provision to a useless
number or dead is not harmonious construction and to
harmonize is not to destroy any statutory provision or to render
it fruitless.

11. Jagdish Singh Vs Lt. Governor, Delhi & Ors (AIR 1997 SC
2239). Where there is a conflict between two provisions, their
harmony should be tried to establish between them. It requires:
read the complete Statute or Rules as a whole; read the
complete statute or rules as a whole, and any Rule should not
be construed to make the other Rule ineffective. It is a cardinal
principal of construction of a Statute or the Statutory Rule that
efforts should be made in construing the different provisions, so
that, each provision will have its play and in the event of any
conflict a Harmonious Construction should be given, Further a
Statute or a Rule made thereunder should be read as a whole
and one provision should be construed with reference to the
other provision so as to make the Rule consistent and any
construction which would bring any inconsistency or
repugnancy between one provision and the other should be
avoided. One Rule cannot be used to defeat another Rule in the
same Rules unless it is impossible to effect harmonization
between them.

12. S. Nagraj (Dead) by LRs & Ors Vs B. R. Vasudeva Murthy &

Ors. ((2010) 3 SCC 353). The Statutes opposing provisions but
with same subject matter have to be read together.

13. SBEC Sugar Ltd & Anr. Vs Union of India & Ors., ((2011) 4
SCC 668). The cardinal principle of construction is that the
provisions of the notification have to be harmoniously
construed as to prevent any conflict with the provisions of the
Statute.

14. State of Rajasthan v. Gopi Kishan Sen (AIR 1992 SC

1754). The Court emphasized the principle of harmonious
construction to uphold and give effect to all provisions without
rendering any of them powerless. The Court invoked the maxim
Const.Ps.No.22, 20, 25-28 & 30/2025 -22-

‘generalibus specialia derogant,’ where a special provision

prevails over a general one on the same subject.

15. East India hotels ltd. Vs. Union of India (AIR 2001 SC
231). An Act is to be read as a whole, the different provisions
have to be harmonized and the effect to be given to all of them.

16. P.S Sattappan vs. Andhra bank ltd. (2004 11 SCC 672).
One cannot interpret a section in a manner which would lead to
a conflict between two sub sections of the same sections.

17. Sarabjit Rick Singh vs. Union of India (2008(2) SCC 417).
The court observed that a construction giving effect to all
provisions of the statute should be adopted.

18. Bhatia International vs. Bulk Trading S.A. ((2002) 4 SCC

105). The conventional way of interpreting a statute is to seek
the intention of its makers. If a statutory provision is open to
more than one interpretation then the Court has to choose that
interpretation which represents the true intention of the
legislature…. Notwithstanding the conventional principle that
the duty of judges is to expound and not to legislate.

10/8. Moreover, the learned counsel for the petitioners

emphatically argued that sub-article (1) of Article 200 should be
read in conjunction with sub-article (2) and if both are read
together, it accentuates that the transfer can be made only for
limited period for the reason that the language of sub-article (2)
explicates that “where a Judge is so transferred or is appointed
to an office other than that of Judge at a place other than the
principal seat of the High Court, he shall, during the period for
which he serves as a Judge of the High Court to which he is
transferred, or holds such other office, be entitled to such
allowances and privileges, in addition to his salary, as the
President may, by Order, determine”. In tandem, the learned
counsel argued that both provisions require harmonious
construction.

10/9. The expression “conjunction” is enunciated as under:-

1. Oxford Dictionary: the expression “conjunction” is defined

as “together”.

2. Merriam-Webster defines the word conjunction as “ in

combination with together with”.
3. Collins Dictionary defines it as “If one thing is done or
used in conjunction with another, the two things are done or
used together”.
Const.Ps.No.22, 20, 25-28 & 30/2025 -23-

10/10. To all intents and purposes, the phrase “conjunction”

doesn't necessarily imply that there's a conflict. It simply means
that the provisions are related and their collective meaning is
what matters. Summarily, read in conjunction with each other
means do not interpret one provision in isolation without
considering the implications and context provided by the others;
recognize that the meaning, scope, or application of one provision
might be clarified, qualified, or even limited by another and the
full and accurate meaning emerges only when all referenced
parts are considered as a whole.

10/11. To keep with the letter of law, neither the aforesaid

constitutional provisions can be given restrictive meaning nor it
can be presumed that this provision can be applied only for time
constraint transfer or for transfer for a specific period and not
permanent, merely for the reason that under sub-article (2) it is
provided that during the period for which a Judge of the High
Court is transferred, he will be entitled to such allowances and
privileges, in addition to his salary, as the President may by
Order determine. The effect of payment of allowances and
privileges, in addition to the salary is confined in the exigency of
temporary transfer for specific period and not for the permanent
transfer. The analogy drawn by the learned counsel for the
petitioners is structured on the erstwhile provisions integrated
under Article 200 where the transfers could be made for one year
or two years without the consent of a judge intended or likely to
be transferred but quite the reverse, the present configuration
and constituents of Article 200, explains in simple terms that no
deadline or closing date/period is provided for the transfer of
judge from one High Court to another which connotes that in the
present structure of Article 200 of the Constitution, the transfer
can be effected both temporarily and permanently but the
Notification of transfer issued by the President should specify the
nature of transfer fair and square without leaving this important
aspect in limbo which has its own repercussions and
ramifications such as, if the transfer is on permanent basis then
obviously, the seat of said transferred judge in his original place
Const.Ps.No.22, 20, 25-28 & 30/2025 -24-

of appointment (High Court) will be vacant and opened for

appointment of a new judge in his place within the prescribed
strength of judges by JCP.

10/12. Even a glimpse of Article 25 of the High Court Judges

(Leave, Pension and Privileges) Order, 1997, accentuates that it is
almost analogous and interconnected with Sub-article (2) of
Article 200 of the Constitution. In point of fact, it evokes a
scenario under the caption “Transfer Allowance” whereby, if a
Judge of a High Court is transferred from one High Court to
another or from the principal seat of a High Court to a Bench of
that Court, or is appointed to an office other than that of Judge
at a place other than the principal seat of the High Court, he
shall, during the period for which he serves as a Judge of the
High Court, or at the Bench, to which he is transferred, or holds
such other office, be entitled, in addition to his salary, to a
monthly allowance of ten thousand rupees.[emphasis supplied].
What it shows in the eyes of law is that the monthly allowance is
payable only during the period for which a person serves as a
Judge of the High Court or at the Bench to which he is
transferred and yet again we observe that this condition applies
only in temporary transfer and not in the event of permanent
transfer. As a matter of course, the primary aim of the Courts is
to get the bottom of the objectives of the Constitutional provision
and then proceed with an interpretation that lends support
thereto. The rule of purposive interpretation of statutes was
originated in the 16th Century by means of decision in the
Heydon’s Case ((1584) 76 ER 637) which laid down the keystone
of the purposive rule of interpretation, that is, if the literal
interpretation of any provision of law is not acceptable or leads to
absurdity, then such provision may be interpreted in line with
the object and purpose which the legislature had in mind while
enacting the law. According to Maxwell on the Interpretation of
Statutes (12th ed.), at page 228, where the language of a statute,
in its ordinary meaning and grammatical construction, leads to a
manifest contradiction of the apparent purpose of the enactment,
or to some inconvenience or absurdity, hardship or injustice,
Const.Ps.No.22, 20, 25-28 & 30/2025 -25-

which can hardly have been intended, a construction may be put

upon it which modifies the meaning of the words, and even the
structure of the sentence. Where the main object and intention of
a statute is clear, it must not be reduced to a nullity.

10/13. It was further argued that the transfer summary should

have been approved by the Federal Cabinet before sending it by
the Prime Minster to the President in view of the dictum laid
down by this Court in the case of Mustafa Impex, Karachi versus
The Government of Pakistan (PLD 2016 SC 808). This argument
also does not hold water. If the plain language of Article 48 of the
Constitution is vetted, it is clearly conversed that in the exercise
of functions, the President shall act on and in accordance with
the advice of the Cabinet or the Prime Minister. The summary
moved by the Prime Minster neither transgresses the command
of Article 48 of the Constitution nor it offended the dictates laid
down in the case of “Mustafa Impex”. It is also somewhat
reminiscent to call attention to Rule 15-A of the Rules of
Business 1973, Cabinet Secretariat (Cabinet Division) Islamabad,
wherein it is provided that in terms of any provision of the
Constitution or under any other statutory provision any function
is to be performed or any orders have to be issued by the
President or his specific approval is required, the Division
concerned shall incorporate a paragraph to this effect in the
summary entitled as "Summary for the Prime Minister". The
Prime Minister shall render his advice and submit the case to the
President. After the President has seen and approved the case, it
shall be returned to the Prime Minister. The cases to which this
rule applies are enumerated in Schedule V-B (List of Cases
Requiring Orders of the President on the Advice of the Prime
Minister). In Schedule V-B, item at Serial No.32 under the
nomenclature of “Law and Justice Division” is germane to the
High Court, its number of Judges, appointment of Chief Justices,
Acting Chief Justices and other Judges and their transfers,
removal, allowances and privileges with reference to
Constitutional provisions such as Article 192 (1), 193 (1), 196,
197, 200 and 209 (6).
Const.Ps.No.22, 20, 25-28 & 30/2025 -26-

10/14. A phrase "Constitutional lens" is now commonly being

used which in literal sense denotes the interpretation and
decision of cases within the framework of a constitution. By
means of this lens, the Courts while exploring every avenue may
scrutinize and survey the laws and policies vis-à-vis the
provisions of the constitution to reach a conclusion whether it
scaffolds the fundamental laws and tenets or not. Great
philosopher Plato said "no law or ordinance is mightier than
understanding." According to John Marshall, the constitution is
either a superior paramount law unchangeable by ordinary
means, or it is on a level with ordinary legislative acts alterable
when the legislature shall please to alter it. It is emphatically the
province and duty of the judicial department to say what the law
is. This is the very essence of judicial duty. While Justice Neil
Gorsuch, (Supreme Court of USA), said “ours is the job of
interpreting the Constitution. And that document isn't some
inkblot on which litigants may project their hopes and dreams”.
Some Latin Legal maxims are also applied as guiding light which
paves a way to elect fundamental legal principles for judges and
lawyers in interpreting the laws and raison d'être of legal
provisions and rules in order to make sure consistency and
equanimity in the Courts decisions. For example: "A verbis legis
non recedendum est" translates to "from the words of the law,
there must be no departure." In fact, this legal maxim underlines
the interpretation of law on its literal wording and meaning of
legal text. While the maxim “verba cum effectu accipienda
sunt” explicates that "words are to be understood so as to give
them effect" or words are to be construed as to their effect". The
“ratio legis est anima legis, et mutata legis ratione, mutatur
ex lex", (the reason for a law is the soul of the law, and if the
reason for a law has changed, the law is changed). Whereas the
maxim, "cessante ratione legis, cessat ipsa lex" denotes "when
the reason for the law ceases, the law itself ceases." Another
maxim “ut res magis valet quam pereat” enunciates that “the
thing may have effect rather than be destroyed" or it is better for
a thing to have effect than to be made void". Meaning thereby
that while interpreting the laws, the validity of legal provision
Const.Ps.No.22, 20, 25-28 & 30/2025 -27-

should be guarded rather than rendering it totally ineffective or

invalid. The next dominant maxim is "aequitas nunquam
contravenit leges" which means "equity never contradicts the
law." Indeed this maxim provides a proactive guiding force that
equity can complement where the strict application of law might
be unjust. In essence, doctrine of equity can operate as a
corrective measure within the leaps of law but not as a devices or
tool to nullify the express provision of law. Last but not least, the
phrase "iudicis est ius dicere, non dare" is equally of great
magnitude which focuses on the role and sense of duty of judges.
It deciphers that "it is for the judge to declare the law, not to give
it." This draws a dynamic distinction between the legislative
function of making laws and the judicial function of interpreting
and applying them in its veritable intellect.

10/15. According to Warren E. Burger, former Chief Justice of

the United States, “the Judges rule on the basis of law, not
public opinion”. Judicial populism triggers when judicial
branches are much more influenced by the people and render the
decisions according to the will of people which is not precisely
the role of judiciary. The role of a constitutional judge is different
from that of a King, who is free to exert power and pass orders of
his choice over his subjects. Vesting of judicial power does not
mean to exercise as per will of the judge but effect is ought to
have given the will of the law and Constitution. Under the guise
or semblance of populist approach, the judges cannot indulge in
electing and opting public opinion and emotions for
overshadowing or eroding established constitutional and legal
provisions. At this juncture, I am also fortified by the judgment
authored by Justice Mansoor Ali Shah in the case of Mian Irfan
Bashir Vs. Deputy Commissioner (D.C.), Lahore (PLD 2021
Supreme Court 571), wherein the learned author of the
judgment quoted Chief Justice John Marshall, who stated that
judicial power is never exercised for the purpose of giving effect
to the will of the judge, but always for the purpose of giving effect
to the will of the legislature; or in other words, to the will of the
law. Additionally, his lordship referenced an excerpt from the
Const.Ps.No.22, 20, 25-28 & 30/2025 -28-

chapter “The Rehnquist Court and "Conservative Judicial

Activism” in the book “That Eminent Tribunal: Judicial Supremacy
and the Constitution” authored by Christopher Wolfe (American
Political Scientist), and held as under:

“5. It is one thing for a judge to progressively interpret the law

because of human rights considerations about which he has
substantial information. It is quite another to change or ignore
the law for economic or social or political reasons based on
polycentric considerations beyond the judge's expertise.
According to Chief Justice John Marshall, judicial power is
never exercised for the purpose of giving effect to the will of the
judge; but always for the purpose of giving effect to the will of
the legislature; or in other words, to the will of the law. When
courts exercise power outside the Constitution and the law and
encroach upon the domain of the Legislature or the Executive,
the courts commit judicial overreach.

6. Judicial overreach is when the judiciary starts interfering

with the proper functioning of the legislative or executive organs
of the government. This is totally uncharacteristic of the role of
the judiciary envisaged under the Constitution and is most
undesirable in a constitutional democracy. Judicial overreach is
transgressive as it transforms the judicial role of adjudication
and interpretation of law into that of judicial legislation or
judicial policy making, thus encroaching upon the other
branches of the Government and disregarding the fine line of
separation of powers, upon which is pillared the very construct
of constitutional democracy. Such judicial leap in the dark is
also known as "judicial adventurism" or "judicial imperialism."
A judge is to remain within the confines of the dispute brought
before him and decide the matter by remaining within the
confines of the law and the Constitution. The role of a
constitutional judge is different from that of a King, who is free
to exert power and pass orders of his choice over his subjects.
Having taken an oath to preserve, protect and defend the
Constitution, a constitutional judge cannot be forgetful of the
fact that he himself, is first and foremost subject to the
Constitution and the law. When judges uncontrollably tread the
path of judicial overreach, they lower the public image of the
judiciary and weaken the public trust reposed in the judicial
institution. In doing so they violate their oath and turn a blind
eye to their constitutional role. Constitutional democracy leans
heavily on the rule of law, supremacy of the Constitution,
independence of the judiciary and separation of powers. Judges
by passing orders, which are not anchored in law and do not
draw their legitimacy from the Constitution, unnerve the other
branches of the Government and shake the very foundations of
our democracy.” [Emphasis Applied]

10/16. In our considered view, there is no incongruity or

repugnancy in the midst of Article 175A and Article 200 of the
Constitution. Contrarily, both according to chapter and verse
have different standing for dealing different situations and
physical characteristics of judicial manpower management. A
holistic reading of the Constitution reveals multiple avenues
through which the composition of a High Court may change: (i)
Const.Ps.No.22, 20, 25-28 & 30/2025 -29-

by a new appointment under Article 175A; (ii) by elevation of one

of its judges to the Supreme Court (thus creating a vacancy); (iii)
by retirement or resignation or removal of a judge (again creating
vacancy); and (iv) by permanent transfer of a judge from or to
that High Court under Article 200 (filling a vacancy in one High
Court while simultaneously creating a vacancy in another). The
Secretary JCP (Respondent No.2) also filed the reply/concise
statement vide CMA.2229/2025 in Const.P.22/2025 in which it
is clearly submitted that the mandate of JCP under Article 175A
of the Constitution is a constitutional body which is primarily
tasked to the appointment of Judges to the Supreme Court of
Pakistan, High Courts and Federal Shariat Court and has
nothing to do with the transfers made in exercise of powers
under Article 200 of the Constitution. Had the framers of
Constitution intended to subsume the transfer of judges from
one High Court to other entirely under the JCP regime or
deliberation, they would either have repealed Article 200 in the
18th Amendment or included language in Article 175A to govern
transfers also but substratum of Article 200 still remains
unchanged which demonstrates the intention of framers of
Constitution manifestly that neither they aspired to vest in such
powers to JCP, nor they amended or diluted the exactitudes of
Article 200 of the Constitution. A transfer by the President under
Article 200 cannot be questioned on the ground that the vacancy
should have been filled by the JCP through a fresh appointment.
To hold otherwise would not only contradict the manifest
intention of the Constitution’s framers but effectively read Article
200 out of the book. In view of the above, we answer the first
point by affirming that Article 200 is a valid, self-contained
constitutional mechanism for transferring High Court Judges,
(permanently or temporarily) and its invocation in the present
case does not violate or subvert Article 175A by any means. The
two provisions neither overlap nor override each other, nor is
there any disharmony or dissonance amongst them which need
to be reconciled or resolved.
Const.Ps.No.22, 20, 25-28 & 30/2025 -30-

2. Constitutional Requirements of Consent and Consultation:

11. The forthright rendition of Article 200 conveys that it is

consciously and purposefully barricaded with conditions to
ensure that the power of transfer of High Court Judge should not
be misused by the executive to the detriment of judicial
independence, therefore, a “four tier formula” is encapsulated i.e.
(i) the consent of the Judge concerned; (ii) consultation with the
Chief Justice of Pakistan; (iii) consultation with the Chief Justice
of the High Court from which the Judge is to be transferred;
and (iv) consultation with the Chief Justice of the High Court to
which the Judge is to be transferred. The requirement that no
Judge shall be transferred without his consent is an emphatic
recognition of a judge’s personal and professional stakes in his
posting. It acknowledges that transferring a Judge is not a trivial
matter; it uproots him from familiar surroundings, possibly
compels relocation of family, changes his pool of cases and
lawyers, and might affect his chances for future elevation. Thus,
the Constitution grants him first choice or first right of refusal. If
he refuses, the matter ends forthwith at the very initial stage.
There was no complaint that judges were transferred without
their consent or volition. The next tier of protection is the
consultation with the Chief Justice of Pakistan who according to
the record in principle, agreed to the proposal of transferring
three Judges to IHC. In fact, the initiative was discussed between
the Law Ministry and the CJP, and the consent of Judges was
procured subsequently. The CJP’s consent is the linchpin, being
paterfamilias of the judicial family. Regarding the Chief Justice of
the donor High Courts (LHC, SHC, BHC), the record indicates
they were informed and their views sought. None of them raised
any objection, evidently, no qualms or reservations were voiced
during consultation process.

11/1. No doubt the consultation should be effective, meaningful,

purposive, and consensus oriented (Ref: Al-Jehad Trust v. Federation
of Pakistan (PLD 1996 SC 324)). It refers to the process whereby
people exchange views and information. It is not just a one-way
process, but a process of sharing knowledge and opinions. The
Const.Ps.No.22, 20, 25-28 & 30/2025 -31-

expression “consultation” is defined in the different lexicons as

under:-

1. Black’s Law Dictionary, ’consultation’ is the act of asking the

advice or opinion of someone (such as a lawyer).

2. Collins Dictionary. A consultation is a meeting which is held

to discuss something. Consultation is discussion about
something. www.collinsdictionary.com/dictionary/english/consultation

3. Oxford Learners Dictionaries. The Consultation is the act

of discussing something with somebody or with a group of
people before making a decision about it.
https://www.oxfordlearnersdictionaries.com/definition/english/consultation

4. Stroud's Judicial Dictionary, Volume 1, Fourth Edition, for the

definition of the word "consultation: New Towns Act 1946, (C.68),
SA(l). Consultation means that, on the one side, the Minister
must supply sufficient information to the local authority to enable
them to tender advice, and, on the other hand, a sufficient
opportunity must be given to the local authority to tender advice"
Per Bucknill L.J. in Rollo v. Minister of Town and Country
Planning (1948) 1 All E.R. 13. 13, C.A.; see also Fletcher v.
Minister of Town and Country Planning (1947) 2 All E.R. 946. (2)
"Consultation so far as practicable ... with the ... parochial
church councils" (Pastoral Reorganization Measure 1949 (No.3),
S.3(l) means that a full and sufficient opportunity for the
members of the council to ask questions and to submit their
opinions in any reasonable way should be given (re: Union of
Benefices of Whippingham and East Cowes, St. James (1954)
A.C. 245. Ref: Al-Jehad Trust through Raeesul Mujahideen
Habib-ul-Wahabb-ul-Khairi v. Federation of Pakistan and
others (PLD 1996 Supreme Court 324)

11/2. According to the learned counsel for the petitioners, the

process of consultation was sham and completed with due haste.
It was further articulated that the material facts were concealed
and suppressed during the consultation process. When the
aforesaid bunch of Constitution Petitions were filed and fixed in
Court, we on the very first date i.e. 14.4.2025, issued notices to
all the respondents including the Attorney General and Advocate
General of all Provinces and Islamabad Capital Territory under
Order 27A CP.C. In response, the Registrar Supreme Court of
Pakistan, Registrar Lahore High Court, Sindh High Court,
Balochistan High Court and Islamabad High Court have filed
their reply through concise statements, which are reproduced as
under:-

i) Registrar Supreme Court (Respondent No.04)

CMA.2228 of 2025 in Const.P.No.22 of 2025

“It is respectfully submitted as follows:-

Const.Ps.No.22, 20, 25-28 & 30/2025 -32-

1. It is submitted that under Article 200(1) of the Constitution of

the Islamic Republic of ("Constitution"), the President may
transfer a Judge of a High Court to another High Court with his
consent and after consultation by the President with the Chief
Justice of Pakistan and the Chief Justices of both High Courts.

2. In furtherance to the above and keeping in view the

mechanism laid out in Article 200(1), consultation/concurrence
of the Hon'ble Chief justice of Pakistan was sought by the
Ministry of Law and Justice vide letter dated 01-02-2025. The
said consultation/concurrence was duly provided/conveyed by
the Hon'ble Chief Justice of Pakistan on 01-02-2025.

3. In view of the foregoing it is respectfully noted that the

concise statement may be taken on record.

Registrar
Drawn & Settled by
Muhammad Salim Khan,
Registrar Supreme Court of Pakistan Islamabad”

ii) Registrar Lahore High Court (Respondent No.06)

CMA.No.2238 of 2025 in Const.P.No.22 of 2025

“Respectfully Sheweth.

That the Hon'ble Supreme Court of Pakistan (Constitutional

Bench) vide order dated 17.04.2025 passed in above said
petition has been pleased to direct the answering respondent to
file concise statement. The relevant portion of the order of the
Hon'ble Bench is reproduced below:-

"3. The notices issued to the learned Advocate General of the

Province and Islamabad Capital Territory have been served, and
except the Advocate General Sindh, all learned Advocate
Generals/Additional Advocate Generals are present. Since the
Registrars of High Courts have also been impleaded in this
petition, therefore, all learned Advocate Generals are directed to
consult with the Registrar of their concerned High Court and file
their concise statements before the next date of hearing along
with the seniority list maintained by the Hon'ble Judges in their
respective High Courts.

2. That Hon'ble Mr. Justice Bardar Muhammad Sarfraz Dogar

s/o Sardar Nazar Hussain Dogar was a practicing lawyer at
Multan when on the recommendations of the then Hon'ble Chief
Justice of the Lahore High Court Lahore was appointed as
additional Judge of the Lahore High Court, Lahore vide
Notification No.F.5(1)/2015-/A.II. dated 05.06.2015 issued by
the Ministry of Law Justice and Human Rights Division, Govt. of
Pakistan, Islamabad (Annex-A).

3. In pursuance of the above said Notification Hon'ble Mr.

Justice Sardar Muhammad Sarfraz Dogar took oath of the office
of additional Judge of the Lahore High Court Lahore on
08.06.2015 (Annex-B) and assumed charge accordingly on the
same day, charge assumption report in attached as Annex-C.

4. That vide Notification No.F.5(1)/2015-/A.II. dated 09.05.2016

issued by the Ministry of Law & Justice, Govt. of Pakistan, the
President of Islamic Republic of Pakistan was pleased to extend
the tenure of office of Hon'ble Mr. Justice Sardar Muhammad
Sarfraz Dogar, amongst others as additional Judges of Lahore
High Court Lahore for a period of one year w.e.f. the date their
present term of office expires, while exercising powers under
Article 197 of the Constitution of Islamic Republic of Pakistan
(Annex-D).

5. That vide Notification No.F.5(1)/2015-/A.II. dated 26.05.2017

issued by the Ministry of Law & Justice, Govt. of Pakistan, the
President of Islamic Republic of Pakistan while exercising
Const.Ps.No.22, 20, 25-28 & 30/2025 -33-

powers under Article 193 of the Constitution of Islamic Republic

of Pakistan was pleased to appoint Hon'ble Mr. Justice Sardar
Muhammad Sarfraz Dogar along with five other additional
Judges of the Lahore High Court Lahore to be the Judges of the
said Court w.e.f. the date they make oath of their office (Annex-
E).

6. That in compliance with the aforesaid Notification Hon'ble Mr.

Justice Sardar Muhammad Sarfraz Dogar took oath of the office
of Judge of Lahore High Court Lahore on 27.05.2017 (Annex-F)
and assumed charge accordingly on 27.05.2017 (Annex-G).

7. That on 29.01.2025 Hon'ble Mr. Justice Sardar Muhammad

Sarfraz Dogar has given his consent sought by His excellency
the President of Pakistan for his transfer from the Lahore High
Court Lahore to the Islamabad High Court Islamabad and after
having the consent of the said Hon'ble Judge, His excellency the
President of Pakistan also consulted with the Hon'ble Chief
Justice of Lahore High Court Lahore, in response to which the
Hon'ble Chief Justice accorded concurrence on 31.01.2025.

8. That vide Notification No.F.10(2)/2024-A.II dated 01.02.2025

issued by Ministry of Law & Justice, Govt. of Pakistan, His
excellency the President of Pakistan while exercising powers
conferred under clause (1) of article 200 of the Constitution of
the Islamic Republic of Pakistan was pleased to transfer Hon'ble
Mr. Justice Sardar Muhammad Sarfraz Dogar along with two
other Hon'ble Judges namely Hon'ble Mr. Justice Khadim
Hussain Soomro, Judge High Court of Sindh and Hon'ble Mr.
Justice Muhammad Asif, Judge High Court of Baluchistan to
Islamabad High Court (Annex-1).

9. That Hon'ble Mr. Justice Sardar Muhammad Sarfraz Dogar

was at Sr.No.15 of the seniority list of the Hon'ble Judges of
Lahore High Court Lahore at the time of transfer from Lahore
High Court Lahore to Islamabad High Court, Islamabad (Annex-
1), whereas, the present seniority list of the Hon'ble Judges of
Lahore High Court Lahore is attached at Annex-J for facility of
the reference.

10. That pursuant to the Notification dated 01.02.2025 issued

by Ministry of Law & Justice, Govt. of Pakistan Hon'ble Mr.
Justice Sardar Muhammad Sarfraz Dogar relinquished the
charge of the office of Judge, Lahore High Court Lahore (Annex-
K), on 01.02.2025

(Amjad Iqbal Ranjha)

Registrar
Lahore High Court”

iii) Registrar Sindh High Court (Respondent No.07.)

CMA.No.2911 of 2025 in Const. P.22 OF 2025

“It is respectfully submitted that so far memos of above constitution

petitions have not been received. However, the last order dated, 17-
04-2025 passed in the above numbered constitution petitions,
required filing of concise statement before the next date of hearing
along with seniority list maintained by the Honourable Judges in the
respective High Courts.

2. It is respectfully submitted that letter bearing F. No. 10(2)/2024-

A.II, dated: 31-01-2025 was addressed to this office by Mr. Raja
Naeem Akbar, Secretary, Ministry of Law & Justice, Government of
Pakistan on the subject for transfer of Mr. Justice Khadim Hussain
Soomro, Judge, High Court of Sindh from High Court of Sindh to
Islamabad High Court pursuant to Article 200 of the Constitution of
Pakistan (Copy along with its relevant annexures is enclosed as
Annex-A). The said letter was then placed before the then Honourable
Chief Justice and thereafter the reply thereto with concurrence
pursuant to Article 200 of the Constitution coupled with the consent
conveyed by Honourable Judge was sent through letter No.
Const.Ps.No.22, 20, 25-28 & 30/2025 -34-

RHC/PA/JCP-8/2025, dated: 31-01-2025 (Copy of letter is enclosed

as Annex-B)

3. It is further respectfully submitted that thereafter Notification No.

F.10(2)/2024-A.II, dated: 01-02-2025 was issued by Secretary,
Ministry of Law and Justice, Government of Pakistan and charge
assumption report of Honourable Mr. Justice Khadim Hussain
Soomro as Judge, Islamabad High Court was furnished to this Court
by Additional Registrar (Estb.) Islamabad High Court through letter
dated: 03-02-2025 (Copy of Notification dated: 01-02-2025 and letter
dated: 03-02-2025 are enclosed as Annex-C and D respectively.)

4. It is further respectfully submitted that the present Seniority List

maintained in this Court is enclosed as Annex-E.

Submitted for kind perusal and further orders.

Suhail Muhammad Laghari

Registrar, High Court of Sindh”

iv) Registrar Islamabad High Court (Respondent No.05)

C.M.A.No.2256 in Const. P.No.22 of 2025

“Respectfully Submitted:

01. That the above titled petition is pending adjudication before the
Honorable Constitutional Bench wherein the Registrar, Islamabad
High Court, Islamabad, is arrayed as one of the Respondents.

02. That wide order dated 17.04.2005, the learned Advocate Generals
have been directed to file concise statements. The operative part of the
order of Constitution Bench of Supreme Court is reproduced below:

"3. Since the Registrars of the High Courts have also been impleaded in
this petition, therefore, all learned Advocate General are directed to
consult with the Registrar of their concerned High Courts and file their
concise statements before the next date of hearing along with the
seniority list maintained by the Honourable Judges in their respective
High Courts."

03. That the titled petition seeks to challenge transfer of judges to the
Islamabad High Court vide notification dated 01.02.2025, issued by
the Ministry of Law & Islamabad High Court dated 03.02.2025
(Annex-Page 4); the notification of appointment of the Hon'ble Acting
Chief Justice of the Islamabad High Court dated 12.02.2005 (Annex-
Page 5); and the decision on the representation of the Hon'ble Judges
by the then Chief Justice of the Islamabad High Court,
dated 08.02.2025 (Annex-Page 61 Justice (Annex-Page 3); the
seniority list of the Hon'ble Judges as issued by

04. That the summary was initiated by the Ministry of Law & Justice
the Prime Minister, whereupon the Prime Minister sent the same to
the President of the Islamic Republic of Pakistan for transfer of High
Court judges to the Islamabad High Court.

05. That the President of the Islamic Republic of Pakistan approved

the summary of the Prime Minister for transfer of High Court judges
to the Islamabad High Court after meaningful consultation with the
Hon'ble Chief Justices of the respective High Courts and the Chief
Justice of Pakistan and thereafter the Ministry of Law and Justice
issued notification of the transferee judges dated 01.02.2025
accordingly.

06. That the transfer of judges has been made after fulfilling all
constitutional requirements. The process of transfer was initiated,
processed and then finalized in accordance with Article 200 of the
Constitution of the Islamic Republic of Pakistan, 1973.

07. That the Hon'ble Acting Chief Justice of the Islamabad High
Court, Mr. Justice Muhammad Sarfraz Dogar, had already been
administered oath as Additional Judge and as Judge of Hon'ble High
Const.Ps.No.22, 20, 25-28 & 30/2025 -35-

Court. On his transfer to the Islamabad High Court, on the basis of

rule laid down for seniority of High Court's Judges by the Hon'ble
Supreme Court of Pakistan, the seniority of Hon'ble Mr. Justice
Muhammad Sarfraz Dogar was fixed as Senior Puisne Judge of the
Islamabad High Court vide order dated 03-02-2025.

08. That Senior Puisne Judges are ordinarily appointed as Acting

Chief Justices of respective High Courts, and that on the basis of the
same principle and judicial convention, Hon'ble Mr. Justice
Muhammad Sarfraz Dogar was appointed as Acting Chief Justice of
the Islamabad High Court.

09. That the then Hon'ble Chief Justice of Islamabad High Court had
reconstituted the Administration Committee of High Court as per High
Court Rules & Orders, applicable at the relevant time, vide
Notification dated 03.02.2025.

10. This concise statement is submitted for kind consideration of

Hon'ble Constitutional Bench of the Supreme Court of Pakistan in
compliance of order dated 17.04.2025.

Muhammad Yar Walana

Registrar, Islamabad High Court”

v) Registrar High Court of Balochistan, Quetta (Respondent

No.08) CMA.2255 of 2025 in Const.P.No.22 of 2025

“Humbly sheweth:

Consequent upon having authorization from the President of the

Islamic Republic of Pakistan to initiate transfer process, as envisaged
in Article 200 of the Constitution of Islamic Republic of Pakistan, the
Ministry of Law and Justice, Government of Pakistan, addressed a
letter dated 31 January, 2025, and on having consent from Justice
Muhammad Asif, Judge, High Court of Balochistan, Quetta, for his
transfer to Islamabad High Court, within the meaning of Clause (1) of
ibid Article, by means of another letter of even date requested for
placing the matter before the Hon'ble Chief Justice of this Court for
consultation/concurrence. The Hon'ble Chief Justice at the relevant
time was out of country, however, his honour was contacted on
Mobile, who in view of the consent given by the Hon'ble Judge
concurred for the subject transfer and directed for placing the matter
before the Hon'ble Acting Chief Justice of this Court and his honour
in view of the consent given by the Hon'ble Judge, gave concurrence
for the subject transfer. As a result, the Ministry of Law and Justice,
Government of Pakistan, issued Notification dated Ist February, 2025,
transferring Justice Muhammad Asif, Judge of this Court to
Islamabad, High Court. Copy of letter dated 31.01.2925, consent of
Hon'ble Judge, another letter of Ministry of law of even date, Note
Portion containing approval of the Hon'ble Acting Chief Justice, letter
of this Court dated 31.01.2025 and Notification dated 01.02.2025, are
annexed herewith as Annexure-R-8/1 to R-8/6.

Concise statement as per direction of the Hon'ble Court is submitted

for kind consideration and orders as deemed appropriate in the
interest of justice.
Registrar
High Court of Balochistan, Quetta”

11/3. Last but not least, the letter dated 1st February 2025, (Reg.
No.F-I/2025, communicated by the Registrar, Supreme Court of
Pakistan to Secretary, Ministry of Law & Justice, Government of
Pakistan, Islamabad conveying the consent/concurrence of the
Honourable Chief Justice of Pakistan is quite significant, which
is reproduced as under:-
Const.Ps.No.22, 20, 25-28 & 30/2025 -36-

Concurring note of Honourable Chief Justice Pakistan

“The proposed transfer of the 03 Honourable Judges from

the High Courts of different federating units to Islamabad
High Court completely syncs with the spirit of federalism
as enshrined in the Constitution of Islamic Republic of
Pakistan. It is also in conformity with Section 3 of the
Islamabad High Court Act, 2010. The thoughtful
consideration behind the proposal illustrates resolve in
providing an equitable share to linguistic diversity of our
country and fair chance of representation to all the
federating units in the High Court of the common capital
of the Federation i.e., Islamabad High Court”

11/4. Compliant with the exactitudes and assiduousness of the

consultation process provided under Article 200 of the
Constitution, all the concerned collegium members were
consulted who were none other than the three Chief Justices of
the High Courts and the Chief Justice of Pakistan, who was in a
leading or the dominant position as paterfamilias. In his own
wisdom, not only did he find the proposal completely in sync with
the spirit of federalism, but also in conformity with Section 3 of
the Islamabad High Court Act, 2010. According to him, the
thoughtful consideration behind the proposal illustrated resolve
in providing an equitable share to linguistic diversity of our
country and fair chance of representation to all the federating
units in the High Court of the common capital of the Federation.
What's more, all other Chief Justices of the High Courts were a
part of the consultation process after due consideration and
deliberation conceded the transfer. Though the petitioners are
raising eyebrows against the consultation process and attributing
malice in fact and malice in law, nothing was objected by any of
the consultees involved in the process who had actually every
right to object if found some wrongfulness or impropriety in the
process. Had any of them any reservation in the consultation
process including the alleged hazard or jeopardizing the public
interest, independence of judiciary and or any complaint or
express doubts vis-à-vis the alleged concealment or suppression
of material facts in the transfer proposal, they could have
undoubtedly raised the objections at the very initial stage and
could not become privy to the transfer proposal or even if
Const.Ps.No.22, 20, 25-28 & 30/2025 -37-

something was suppressed in the proposal floated to them, they

could have raised objections afterwards in their replies filed by
the concerned Registrars to bring it in the knowledge of this
Court. But in all replies, they all open-heartedly reinforced the
transfers without any remonstration and their concurrence
cannot reckon as a snap decision. We are sure that under the
doctrine of indoor management, the ripostes could not be filed by
the Registrars in this Court without the administrative approval
and vetting of their concerned Chief Justices.

11/5. If we look into Article 222 of the Constitution of India, it

also empowers the President to transfer a judge from one High
Court to another after consulting the Chief Justice of India but
the consent of the judge being transferred is not a requirement
for either initial or subsequent transfers while in our Article 200,
a foolproof and watertight procedure is provided to be complied
with before issuing transfer notification by the President. The
question of transfer of High Court Judges was for the first time
raised in the case of Union of India v. Sankal Chand Himatlal
Sheth & Anr. (1978 (1) SCR 423 = AIR 1977 SC 2328), where
the petitioner was a judge of Gujarat High Court who was
transferred to the Andhra Pradesh High Court. He challenged the
transfer's validity and argued that it was unconstitutional
because it was done without his consent, violated an earlier
assurance by the Law Minister, was not in the public interest,
and resulted from ineffective consultation with the Chief Justice
of India. The Supreme Court held that the consent of the judge
being transferred is not a prerequisite under Article 222(1) of the
Constitution; the Court emphasized that Article 222 (1) imposes
a mandatory obligation on the President to consult with the Chief
Justice of India before transferring a judge; the Court
acknowledged the importance of preserving judicial
independence but concluded that the power to transfer judges,
when exercised in the public interest, does not necessarily
undermine it and it was further clarified that transfer of High
Court judges should be made with effective consultation with the
Chief Justice of India. In the First Judges Case S.P.Gupta v.
Const.Ps.No.22, 20, 25-28 & 30/2025 -38-

Union of India (AIR 1982 SC 149), it was held that that the
executive could refuse the Chief Justice of India’s
recommendation for cogent reasons. In the Second Judges Case,
Supreme Court Advocates on Record Association v. Union of
India (AIR 1994 SC 268), a Collegium system was introduced by
interpreting “consultation” as “concurrence,” meaning the Chief
Justice of India’s opinion must reflect institutional consensus
formed in consultation with the two senior-most Supreme Court
judges. Whereas in the Third Judges Case, In Re: Presidential
Reference (AIR 1999 SC 1), the Collegium was expanded to a
five-member body, comprising the Chief Justice of India and the
four senior-most judges of the Supreme Court. While in the
Fourth Judges Case, Supreme Court Advocate-on-Record
Association And Other v. Union of India ([2016] 5 SCC 1), the
Supreme Court of India struck down the National Judicial
Appointments Commission (NJAC) Act, 2014, thereby upholding
the Collegium system to safeguard judicial independence. In the
case of Supreme Court Advocates-On-Record Association case
(supra), the Court while deciding the case also referred to the
observation of Justice Chandrachud rendered in the case of
Union of India v. Sankalchand Himatlal Sheth, that the transfers
might be necessary to address a “factious local atmosphere” in a
High Court or to remove a judge from a situation of favoritism.
The Court also referred to the speech of Dr. Ambedkar who cited
strengthening a High Court with “better talents” from elsewhere
and appointing a Chief Justice uninfluenced by local politics.
Moreover, potential reasons for transfer may in the public
interest which include addressing unsuitable working conditions,
resolving irreconcilable differences between a judge and their
colleagues, and preventing the exploitation of a judge's close
relationships for improper gain.

11/6. The bottom line in our thoughtful consideration is that the

prerequisites and due diligence phases encapsulated under
Article 200 were duly complied with in letter and spirit. Yet
again, the power of transfer by the President is not unregulated
or unbridled but structured on a four-tier formula. Hence, for all
Const.Ps.No.22, 20, 25-28 & 30/2025 -39-

intents and purposes, it is resonated without any possibility of

doubt, that in the inbuilt procedure and mechanism, the right of
rejection or primacy/dominance is within the strict sphere and
realm of judiciary and not within the domain or province of
executives. Therefore, it does not in any case compromise the
independence of the judiciary where the option to accept or reject
the transfer’s proposal is vociferously within the hands of the
judiciary without any compromise, which neither disparage the
independence of judiciary nor put it at peril insofar as the
decision making authority or consent remains within the control
of judiciary.

3. Scope & Interpretation of Section 3 of the

Islamabad High Court Act, 2010:

12. Pursuant to Article 175 of the Constitution, the Islamabad

High Court was established in the Capital Territory vide Law,
Justice and Parliamentary Affairs Division’s Notification No. F.9
(I)/2008-A.II, dated 22.4.2010. The learned counsel for the
petitioners argued that the transfer of judges in Islamabad High
Court also contravenes Section 3 of IHC Act, 2010, which is
reproduced as under:-

“3. Islamabad High Court. (1) The Islamabad High

Court shall consist of a Chief Justice and twelve
other Judges to be appointed from the provinces
and other territories of Pakistan, in accordance
with the Constitution.

(2) The Islamabad High court shall start

functioning from the appointed date.

(3) The principal seat of Islamabad High Court

shall be at Islamabad”.

12/1. The petitioners leaned on the phrase “to be appointed from

the provinces and other territories” as the sticking point and
argued that the life and soul of this provision emphasizes
the mode of induction into IHC by appointment through JCP
rather than the transfer of judges from other High Courts. We
find this argument to be based on a misreading of Section 3 of
IHC Act, 2010 and an improper attempt without any rhyme or
reason to give a subordinate legislation primacy over the
Const.Ps.No.22, 20, 25-28 & 30/2025 -40-

Constitution. In all conscience, if we look into the pith and

substance, Section 3 is an ordinary law provision and by no
means deemed to be so sacrosanct or sacred with the ability or
proficiency to override or curtail express constitutional powers of
the President conferred under Article 200 of the Constitution.
Even, an astute reading of Section 3 ricochets that it essentially
fixes the composition of the IHC (1 Chief Justice + 12 Judges)
and indicates that these Judges are to hail from various
federating units consistent with the federal character of the
Court. It does not candidly set down the method of appointment
except “in accordance with the Constitution”. We are sanguine
that Section 3 is germane to the appointment but it does not
expressly or impliedly debar or restrict that a judge can only join
the Islamabad High Court through a fresh appointment for all
time to come and not by way of a transfer. To get hold of such
interpretation amounts the overriding Article 200 of the
Constitution. If primacy is accorded to Section 3 of the IHC Act,
2010, it would be constitutional non sequitur. We therefore
conclude that Section 3 of the IHC Act, 2010 proffers no bar to
the impugned transfers. The transfers were made in accordance
with the Constitution and there was no violation of the provincial
representation principle. Section 3 of IHC Act, 2010 cannot be
read to attribute redundancy or severance to Article 200’s
operation or to rein in the provisions of Constitution and its
supremacy. Consequently, we hold that the transfers to IHC are
neither unconstitutional nor illegal on the anvil of Section 3 of
the IHC Act, 2010.

4. Public Interest & Judicial Independence Considerations:

12/2. The petitioners also anchored much of their challenge to

the ways and means of the transfer of judges on the principle
of judicial independence which in substance undermined the
internal seniority of a High Court. We do not aspire to hold that
Article 200 of the Constitution is meant to utilize for
compromising or devastating the independence of the judiciary.
How can this provision be construed against the independence of
judiciary when foolproof built in checks and balances are
Const.Ps.No.22, 20, 25-28 & 30/2025 -41-

provided before triggering the transfer of judges? The transfers

were made after due compliance of requisite formalities and every
stakeholder was taken on board and final and central approval to
transfers was accorded by the judiciary and not the executive. In
such a scenario, there is no earthly reason to hold that the
independence of judiciary as an institution is violated when the
judiciary essentially made the choice about its own personnel
and without the requirement of CJP’s approval and judge’s
consent, neither was it possible nor imaginable.

12/3. The learned counsel for the petitioners very forcefully

argued that the transfer of judges can only be made in the public
interest and according to them, the present transfer of judges is
based on malice in facts and malice in law both as well as
against the independence of judiciary. In the case of Al-Jehad
Trust v. Federation of Pakistan (PLD 1996 SC 324), while
interpreting the constitutional provisions governing the
appointment of judges to the superior judiciary, this Court
acknowledged that under the Constitution a High Court Judge
could be transferred to another High Court by the President.
However, it read into Article 200 an important limitation: a
transfer can only be made in the public interest, not as a
punitive measure or for political ends. It was further held that
that a non-consensual transfer (especially coupled with forced
retirement on refusal) militates against the concept of the
independence of Judiciary and effectively amounts to a
circumvention of the removal process under Article 209. The
introduction of provisions in the Constitution for transfer of a
High Court Judge to another High Court without his consent and
also appointment of a High Court Judge to the Federal Shariat
Court without his consent, at the peril of his being [deemed
retired] in case of refusal, or the provision relating to the
nomination of a High Court Judge to any of its Benches are
amendments/additions which militate against the concept of the
independence/separation of Judiciary as envisaged by the
Constitution. Even in the Presidential Reference No. 2 of
1996 (PLD 1997 SC 84), this Court while recapping and
Const.Ps.No.22, 20, 25-28 & 30/2025 -42-

ensuring the spirit of the Al-Jehad judgment, maintained and

even strengthened that primacy in appointments remains with
the judiciary’s recommendation while the formal appointment
remains an executive act.

12/4. In the Black's Law Dictionary (Sixth Edition), 'public

interest' means “something in which the public, the community
at large, has some pecuniary interest, or some interest by which
their legal rights or liabilities are affected. It does not mean
anything so narrow as mere curiosity, or as the interests of the
particular localities, which may be affected by the matters in
question. Interest shared by citizens generally in affairs of local,
state or national government....". Whereas in Black's Law
Dictionary (Eight Edition), "public interest" means "the general
welfare of public that warrants recognition and protection or
something in which the public as a whole has a stake, especially
“an interest that justified governmental regulation". In fact, the
term "public interest" refers to the welfare or well-being of the
general public. In administrative law, the term “public interest”
refers to the collective well-being, security, and proper
functioning of society and the state, as weighed against
individual or private interests. It is a guiding principle used by
government authorities to justify actions and decisions, such as
transfers, suspensions, regulations, or restrictions, that may
affect individuals but are claimed to benefit the broader public. It
carries legitimacy and justifies coercion and it has done so ever
since “salus populi suprema lex esto” (the welfare of the people is
the supreme law, enunciates the idea of law). The concept of
public interest has been defined very aptly in the following cases:

1. English Biscuits Manufacturers (Pvt.) Ltd. v. Monopoly Control

Authority and another (2005 CLD 264). The phrase (public
interest) has been explained by the superior Courts in the
manner that something in which public at large had some
interest or by which their rights or liabilities were affected, but
would not mean interest of a particular person.

2. Abu Dhabi Medical Devices Co. L.L.C. v. Federation of

Pakistan through the Ministry of Health and another" (2010 CLC
1253). Public Interest is very wide expression and embraces
public security, public order and public morality. Expression
Public Interest in common parlance means an act beneficial to
general public and action taken in public interest necessarily
Const.Ps.No.22, 20, 25-28 & 30/2025 -43-

means an action taken for public purpose. It further leads

general social welfare or regard for social good and predicating
interest of the general public in matters where regard was social
good is of the first moment. The dispute involved in the present
case is directly related to the larger public interest and such type
of matter should be decided expeditiously.

3. Dossani Travels (Pvt.) Ltd. v. Travels Shop (Pvt.) Ltd. (PLD

2014 SC 1). It is settled proposition that the competent
authority i.e. the Federal Government is in a better position to
settle their requirements to engage the services of a civil servant,
whose services are required to it or otherwise in the public
interest, this executive discretion could not be interfered with.

4. Premium Battery Industries Limited v. Karachi Water

Sewerage Board (2018 SCMR 365). Constitutional jurisdiction of
the superior Courts was required to be exercised carefully,
cautiously and with circumspection to safeguard and promote
public interest and not to entertain and promote speculative,
hypothetical or malicious attack that blocked or suspended the
performance/executive functions by the Government.

5. Malik Muhammad Bashir Lakhesar, Assistant Advocate

General Punjab vs. Government of Punjab (2019 PLC (C.S.)
266). The pleasure doctrine was not based on any special
prerogative of the Government but was based on public policy
and was in public interest / good. The basis of pleasure doctrine
was that public was vitally interested in efficiency and integrity of
civil services, therefore, public policy required public interest and
public could demand that a civil servant, who is inefficient,
dishonest or corrupt and had become a security risk should not
continue in service.

6. Ashfaq Ahmad Kharal and 21 others v. Province of Punjab

through Secretary, Law and Parliamentary Affairs and others
(PLD 2024 Lahore 129). Although, the expression "public
interest" has not been defined in any law, however, this
expression is to be understood and interpreted in the light of
entire scheme, purpose and object of the enactment in which it is
employed….. it can be deduced that expression "public interest"
is not capable of precise definition and has no strict meaning but
it takes colour from the statute in which it occurs.

7. Janata Dal v. H.S. Chowdhary and others (AIR 1993 SC 892).

In Shrouds Judicial Dictionary, Vol. 4 (IV Edition), 'public
interest' is defined as a matter of public or general interest "does
not mean that which is interesting as gratifying curiosity or a
love of information or amusement' but that in which a class of
the community have a pecuniary interest, or some interest by
which their legal rights or liabilities are affected." (per Cambell
C.J., R. v. Bedfordshire 24 L.J.Q.B. 84).

12/5. Albeit, the forthright reading of Article 200 of the

Constitution makes explicit that the “public interest” is not
condition precedent or a hard and fast rule according to the
language couched in the said provision for the transfer but in our
view, the pros and cons of this onerous task is left to be decided
by the consultees as sole arbiters in terms of Article 200 of the
Constitution. Had they any demur in their fine sense of judgment
Const.Ps.No.22, 20, 25-28 & 30/2025 -44-

that the proposal of transfer is against the public interest or

politically motivated/mala fide, they would have withheld their
consent during consultation process. But here, unanimous
concurrence of the Chief Justice of Pakistan and other Chief
Justices of High Courts candidly conveyed the institutional
endorsement and they do not find it offensive or against the
public interest. On the contrary all the transfers were virtually
consensual and no transferee judge approached this Court to
challenge that his transfer was made without his consent or
under duress/coercion or as a punitive measure and for political
ends or against the public interest. The concurring note of the
Honourable Chief Justice of Pakistan unequivocally
demonstrates that he applauded the transfer. The phrase public
interest to a certain degree denote the state of affairs in which
public at large had some interest or where their rights or
liabilities are jeopardized but it does not mean to espouse or
harbor personal rights or personal interests under the garb of
public interest. Although the expression "public interest" has not
been defined in any law, however, this expression is to be
understood and interpreted in the light of entire scheme, purpose
and object of the enactment. Nothing is articulated as to why and
how the transfers of judges have affected the public interest
despite express provision in the Constitution; whether due to the
transfer, the Islamabad High Court’s working has come to a dead
halt, or stalemate and whether the transferee judges are not
performing their duties according to the roster or the Court is not
regularly functioning. Just for the reason of affecting seniority of
few existing judges by one transferee judge, the transfers cannot
be declared against public interest. The best interest of public at
large is always with the expeditious disposal of their cases and
not in forum shopping. It is a matter of record that initially, the
Islamabad High Court Bar Association (“IHCBA”) had also filed
Constitution Petition No.23/2025 which was fixed with the
bunch of aforesaid petitions but vide CMA No.2168/2025, the
IHCBA withdrew their Petition on 17.04.2025 which
unequivocally deduces that the parent bar association accepted
Const.Ps.No.22, 20, 25-28 & 30/2025 -45-

the transfer of judges and did not find it against the public
interest or independence of judiciary.

5. Seniority and Terms of Transfer:

13. We now take on the question of inter se seniority between the

transferee Judges and the pre-existing Judges of the IHC. In fact,
the bone of contention was predominantly related to Mr. Justice
Sardar Muhammad Sarfraz Dogar, whereas the other two judges
namely Mr. Justice Khadim Hussain Soomro and Mr. Justice
Muhammad Asif are already at the bottom of the seniority list
according to their date of appointment, which does not raise any
cause of concern for the existing judges. The petitioners in
C.P.NO. 22 of 2025 (Five Judges Petition) articulated in
paragraph 70, page 27 of the Paper Book, that the transfers,
envisioned to be a temporary nature and would not disturb the
seniority at a relevant High Court and such transfers judges
would be akin to a deputationist who retains the seniority in
their High Courts. While the same petitioners at page 28 of the
paper book added a paragraph XI under the heading “Transfers
in Pakistan are a usual occurrence for Civil Servants because of
the unified Federal Service but even there a transferee is a
deputationist who does not affect the Seniority of anyone else”.
We do not acquiesce or subscribe to the arguments that the High
Court judges transfer under Article 200 is akin or amounts to
deputation. We also disagree that the transfer can only be made
for temporary period and when the judges will be reverted back,
their seniority will be maintained in the High Court in which
scenario essentially depends upon the terms and conditions
mentioned in the notification of transfer. If the transfer is made
on permanent basis, then of course there shall be no room to join
or revert back to the same High Court by the transferee judge
and his seat will be vacant in the parent High Court for
appointment of a new judge in his place by JCP. Furthermore,
the example of civil servants transfer is not complementary or
well-matched in the present set of circumstances where
unified/combined seniority lists are maintained for different
Const.Ps.No.22, 20, 25-28 & 30/2025 -46-

services and cadre. The civil servants have their own statutory
rules for determination of seniority and their transfer does not
mean deputation in all circumstances but depend on the nature
of transfer. Under Section 8 of the Civil Servants Act, 1973, it is
provided that for proper administration of a service, cadre or
post, the appointing authority shall cause a seniority list of the
members for the time being of such service, cadre or post to be
prepared, but nothing herein contained shall be construed to
confer any vested right to a particular seniority in such service,
cadre or post as the case may be and the seniority of a civil
servant shall be reckoned in relation to other civil servants
belonging to the same service or cadre whether serving in the
same department or office or not, as may be prescribed. Rule 4 of
the Civil Servants (Seniority) Rules, 1993, brings to light that
seniority in a service, cadre or post to which a civil servant is
appointed by transfer shall take effect from the date of regular
appointment to the service, cadre or post. Yet again, in our view,
it depends on the nature of appointment by transfer in a service,
cadre or post which has no direct or indirect nexus to the
transfer of judges made pursuant to a constitutional provision.

13/1. Our constitution is silent on the seniority of judges and

there is no combined/unified seniority list or “All-Pakistan cadre”
for the High Court judges. When a judge moves from one list to
another, the question arises how to fix his seniority. In absence
of a predetermined rule, one approach may be to treat him as
a new entrant, which would make him junior-most as of his
joining date irrespective of his original date of appointment.
Another approach is to consider his original date of appointment
for fixing his seniority in the High court where he is transferred.
While in India, the inter se seniority amongst Judges in their
High Court is determined according to the combined seniority on
all India basis with the principle of continuity in judicial service,
as the judge’s previous tenure is treated as continuous when
they are transferred to another High court and the length of
service, eligibility for pension, entitlements and other service-
related benefits remains uninterrupted and incessant. He is
Const.Ps.No.22, 20, 25-28 & 30/2025 -47-

considered to be in continuous judicial service, even though he

moves from one High Court to another.

13/2. According to the scheme of Constitution, if a Judge is

transferred to another High Court it cannot be treated a fresh
appointment once again as a Judge of a High Court or even as
a Judge of the High Court to which he is transferred. The learned
counsel vigorously opposed the whole action of transfer being
illegal and unconstitutional but as a fall back, they argued that
fresh oath was not taken by the transferee judges and made an
alternate prayer that the transferee judges cannot be considered
judges of the IHC until the take oath as justices of the IHC
pursuant to Article 194 read together with Third Schedule of the
Constitution. The bedrock of this argument was that had they
taken fresh oath, they would be considered juniors to the existing
strength of judges and their seniority would be reckoned at the
bottom of seniority list. The appointment of a Judge of a High
Court is governed under Article 193, whereby the Chief Justice
and each of other Judges of a High Court is appointed by the
President in accordance with Article 175A and under Article 194,
before entering upon office, the Chief Justice of a High Court
shall make before the Governor, and any other Judge of the
Court shall make before the Chief Justice, oath in the form set
out in the Third Schedule, provided that the Chief Justice of the
Islamabad High Court shall make oath before the President and
other Judges of that Court shall make oath before the Chief
Justice of the Islamabad High Court. If a person becomes a judge
of High Court, he continues to occupy the office till the age of
superannuation unless he resigns earlier or removed from office.
So for all practical purposes, if a judge is transferred to another
High Court, he does not enter upon a new office. On one hand
the learned counsel for the petitioners vigorously argued that
transfer of judge can be made temporarily but at one fell swoop,
he emphasized that the judge has to take fresh oath and after
ending the designated period, he will be reverted to his parent
High Court. This argument by the looks of it is mutually
destructive. The intention of framers of Constitution does not
Const.Ps.No.22, 20, 25-28 & 30/2025 -48-

depict that a transferee judge has to take fresh oath on each and
every transfer. Even in the instance of temporary transfer, if a
judge is called upon to take fresh oath on her reversion in the
parent High Court, then the question arises what would be the
consideration of fixing his original seniority after taking fresh
oath which amounts to supersession of his earlier oath in the
same High Court and will he become junior most?

13/3. In the case of Muhammad Aslam Awan, Advocate v.

Federation of Pakistan (2014 SCMR 1289), this Court held that
inter se seniority of Judges of a High Court shall be reckoned
from the order and date of their appointment as Additional
Judges of that Court. Inter se seniority of Additional Judges of a
High Court appointed vide the same order and date shall be
reckoned from their seniority in age. If appointment of two or
more (district judiciary) service candidates was simultaneously
made with that of candidates from the Bar, the service Judges
shall retain their existing seniority in the department regardless
of their age, though age would be the determining factor in
respect of their seniority vis-à-vis the candidates from the Bar.
Such mode and principle of determining inter se seniority of
Judges of the High Court had been consistent in all the four
Provinces, barring one-time deviation when the Administration
Committee of Sindh High Court followed a different course; that
such mode was normative because it was more in accord with
equity and constitutional intent reflected in various provisions of
the Constitution, thus it had assumed the character of a
constitutional convention.

13/4. Since we noted that in the notification of transfer issued by

the President in exercise of powers conferred under Article 200, it
was not demonstrable whether the transfer is temporary or
permanent which was also directly linked up the fixation of
seniority. Therefore, sanguine to the situation that in normal
circumstances, the decision on the disputes relating to the inter
se seniority is within the dominion of the Chief Justice of that
High Court at the administrative side. Right now, the issue of
seniority was not cropped up between the existing strength of
Const.Ps.No.22, 20, 25-28 & 30/2025 -49-

judges of IHC but the dispute was related to the seniority of

transferee judges. Though the learned Attorney General argued
that the transfer seems to be permanent but in our view, whether
the transfer is permanent or temporary, this should be
specifically mentioned in the notification of transfer. It is also a
ground reality that there is no All Pakistan Cadre/unified or
combined seniority list of High Court judges for determining their
seniority at the time of transfer, hence, in the fitness of things,
by means of our short order, we partially remanded the matter to
the President of Pakistan, without upsetting the Notification of
transfer, to determine the seniority in accordance with Article
200 of the Constitution, including the question whether the
transfer is on a permanent or temporary basis.

VII. Letter of Six Judges

14. More or less in all Constitution Petitions, one common

ground has been raised that the transfer of judges appears to be
based on malice in fact and malice in in law. The five learned
judges in their Const.P.No.22 of 2025, in paragraph 114 (page-42
of paper book) also alleged that they sent a letter dated 25.3.2024
(Six judges letter) and disclosed certain instances where the
executive’s functionaries had attempted to meddle in the
judiciary’s functions and Supreme Court has initiated proceeding
by means of Suo Motu Case No. 1 of 2024. Whereas the
petitioners in the Constitution Petition No. 26 & 27 of 2025
in a common ground “M” (at page 45 and 48 of paper books
respectively), alleged that all the impugned actions appear to be
mala fide in fact and mala fide in law, the letter of six judges
complaining about the interference of the Executive and its
intelligence agencies with the working of the judges of IHC
appears to be cause of their victimization at the hands of the
President and the Prime Minister, who acted on the dictates of
the Establishment which is bent upon depriving judiciary of its
independence through highly controversial 26th Constitutional
Amendment. It was further alleged that “the Chief Justice
concerned appears to have been rendered pliable to act on wishes
of the Establishment”. The Five learned judges (petitioners in
Const.Ps.No.22, 20, 25-28 & 30/2025 -50-

Constitution Petition No.22 of 2025) during course of proceedings

also filed their joint statement by dint of C.M.A. No. 2953 of 2025
in which it was inter alia stated that “we neither seek self-
aggrandizement nor any personal benefit from the outcome of
these proceedings. In filing this petition, we have been impelled by
a sense of duty to uphold the Constitution and the oaths we have
sworn. And we have done so in full view of the Code of Conduct
requiring judges not to indulge in avoidable litigation and public
controversy. The actions impugned in this petition would not have
been intolerable had they merely affected our seniority amongst
our peers. They are abhorrent as they constitute commandeering of
Islamabad High Court and demolition of its independence and
sanctity before our eyes”

14/1. In the Constitution Petition No. 25/2025, filed by Mr.

Imran Ahmed Khan Niazi, Founder Chairman of Pakistan
Tehreek-i-Insaf, it has been alleged in paragraph (3) of the
petition that the High Court judges, especially Islamabad High
Court, had written a few letters to the then Chief Justice of
Pakistan detailing the amount of illegal external pressures being
faced by the said judges but no judicial action was taken. While
in paragraph (4) of the Petition, without mentioning any
particular case or cases, it was alleged the said Judges of the
High Court are also being punished because they decided the
false cases on merits registered and filed against the petitioner,
(Mr. Imran Ahmed Khan Niazi) without 'fear or favour'.

14/2. In order to examine and verify the allegations raised in the

letter dated 25.3.2024 by the six learned judges of IHC (Justice
Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri,
Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice
Arbab Muhammad Tahir and Justice Saman Rafat Imtiaz),
initially an inquiry commission was constituted with the approval
of Federal Cabinet and the former Chief Justice of Pakistan, Mr.
Tassaduq Hussain Jillani who was requested to head the one-
man inquiry commission but he recused. Thereafter, this Court
initiated proceedings in Suo Motu Case No. 1 of 2024. The larger
Const.Ps.No.22, 20, 25-28 & 30/2025 -51-

bench was constituted comprising Justice Qazi Faez Isa, CJP, (as
he then was), Justice Syed Mansoor Ali Shah, Justice Jamal
Khan Mandokhail, Justice Athar Minallah, Justice Musarrat
Hilali and Justice Naeem Akhtar Afghan. The aforesaid bench
heard the case on 03.04.2024, 30.04.2024 and 07.05.2024 but
the matter is still pending without any final outcome or end
result which should have been decided much earlier.

14/3. The petitioners blame that the transfer of outside judges

have been made in the IHC vide Notification dated 01.02.2025 to
victimize the six judges due to writing a letter by them on
25.3.2024 (almost before eleven months of transfer notification).
In the practical and methodical legal acuteness, malice in law
does not deduce an act done with an inappropriate or
reprehensible motive but it implies a wrongful act done
intentionally without cause or excuse. It insinuates a wrongful
aspiration and objective, presumed in the case of an unlawful
act, rather than a bad motive or feeling of ill-will. In the legal
terminology, malice in law is interconnected to the actions that
are intrinsically illegal, heedless of the actual intent of the
committer. No doubt, the alleged reasons of transfer is the letter
of six judges but it is a ground reality that the proceedings on
account of aforesaid letter is pending adjudication, though in our
view the said case should have been fixed and decided one way
or the other but unfortunately, it was never fixed after
07.05.2024 and is still pending.

14/4. The fragment of arguments relating to the letter which is

sub judice in some other proceedings cannot be taken and
decided in the present proceedings. Any remark, comment or
observation made in the present proceedings regarding the
pending Suo Motu Case No. 1 of 2024, may seriously prejudice
the outcome of sub judice matter in which various serious issues
have been raised and require independent application of mind
and decision without mixing it with other case or cases.
Moreover, various Constitution Petitions challenging the 26th
Constitutional Amendment are also pending in this Court.
Therefore, no observations can be made to said pending
Const.Ps.No.22, 20, 25-28 & 30/2025 -52-

proceedings as well in the present proceedings. It was further

alleged that the Chief Justice concerned appears to have been
rendered pliable to act on the wishes of the Establishment. In the
present proceedings we have to figure out and decide whether the
inbuilt mechanism provided under Article 200 of the Constitution
has been fulfilled or not? Seemingly, entire procedure has been
followed in letter and spirit and consent was accorded with
proper application of mind which is manifestly reflecting from the
concurrence accorded by the consultees that was further
reinforced and fortified through the replies filed by Registrars of
the High Court and Supreme Court of Pakistan. As a
Constitutional Bench of this Court, by all means, we want to
stick to our domain and decide the legal implications and
compliances rather than delving into the allegations leveled
against the consultees, which is otherwise uncalled for and
unwarranted, therefore, we cannot pass any declaration to the
effect whether the Chief Justice concerned were pliable on wishes
of the Establishment or not?. Such allegations can be leveled
easily against each and every transfer if made under Article 200
because the procedure and consultees will always remain the
same i.e. the Chief Justice of Pakistan and the Chief Justices of
both High Courts unless Article 200 of the Constitution is
amended or substituted.

14/5. By majority of 3 to 2, comprising Justice Muhammad Ali

Mazhar, Justice Shahid Bilal Hassan, and Justice Salahuddin
Panhwar, the aforesaid Constitution Petitions were disposed of
along with a Civil Misc. Applications, vide short order dated 19th
June, 2025 in the following terms:

“1. The powers of the President of Pakistan under Sub-

article (1) of Article 200 of the Constitution of the
Islamic Republic of Pakistan, 1973 (“Constitution”) for
the transfer of a Judge of the High Court from one High
Court to another High Court and the provisions
contained under Article 175A of the Constitution for
appointment of Judges to the Supreme Court, High
Courts, and the Federal Shariat Court by the Judicial
Commission of Pakistan (“JCP”) are two distinct
provisions dealing with different situations and niceties.
Neither do they overlap nor override each other. The
transfer of a judge by the President of Pakistan by
Const.Ps.No.22, 20, 25-28 & 30/2025 -53-

means of Article 200 of the Constitution (permanently

or temporarily) cannot be construed as a fresh
appointment. Furthermore, the powers of transfer
conferred to the President by none other than the
framers of the Constitution cannot be questioned on the
anvil or ground that if the posts were vacant in the
Islamabad High Court, then why they were not filled up
by JCP through fresh appointments. One more
important facet that cannot be lost sight of is that the
transfer from one High Court to another High Court can
only be made within the sanctioned strength, which can
only be regarded as a mere transfer and does not
amount to raising the sanctioned strength of a
particular High Court.

2. In all fairness, if it is presumed that all posts should

be filled by the JCP alone through fresh appointments,
then such interpretation or state of mind, in our view,
would not only go against the manifest intention of the
framers of the Constitution but will also amount to
negating or making redundant the substratum and
existence of Article 200 of the Constitution; which
Article is absolutely not dependent, concomitant, or at
the mercy of Article 175A of the Constitution, but is an
independent and standalone provision dealing with the
transfer of judges of a High Court (permanently or
temporarily) and not the appointment of judges, which
assignment has been incontrovertibly conferred to the
JCP autonomously in terms of Article 175A of the
Constitution.

3. As far as Section 3 of the Islamabad High Court Act,

2010, is concerned, it only divulges that the Islamabad
High Court shall consist of a Chief Justice and twelve
other judges to be appointed from the provinces and
other territories of Pakistan in accordance with the
Constitution. In our considered view, this provision is
only germane to the appointment of judges and does
not, in any way, mean that a judge can only join the
Islamabad High Court through a fresh appointment and
not by way of a transfer or, in other words, that Article
200 does not apply to the Islamabad High Court, which
interpretation would be against the exactitudes of the
Constitution. Neither can Section 3 of the aforesaid Act
supersede/override a constitutional mandate, nor can it
control, nullify, or rescind the powers of transfer that
are vested in the President of Pakistan under Article
200 of the Constitution.

4. Nevertheless, the exercise of the powers of transfer by

the President of Pakistan under Article 200 of the
Constitution is not unregulated or unfettered. It is
structured on a four tier formula which expounds that
no judge shall be transferred except with his consent
and after consultation by the President with the Chief
Justice of Pakistan and the Chief Justices of both High
Courts. What does this mean? If at the very initial
stage, a judge intended to be transferred from one High
Court to another High Court refuses the offer/proposal,
then obviously the matter ends forthwith. Even in the
Const.Ps.No.22, 20, 25-28 & 30/2025 -54-

case of consent, the transfer shall be subject to

consultation with two Chief Justices of the High Courts
and the Chief Justice of Pakistan, as the paterfamilias
of judiciary, who may, during the consultation process,
pragmatically ruminate the pros and cons germane to
the transfer proposal, including the aspect of public
interest, if any. Hence, for all intents and purposes, it is
reverberated beyond any shadow of doubt that before
exercising the power of transfer, certain inbuilt
procedures and mechanisms have to be followed in
letter and spirit and the decision, or the right of refusal
or primacy, is within the sphere and realm of judiciary
and not within the domain of executives. Therefore, it
does not in any case compromise the independence of
the judiciary for the discernable reason that the
decision to accept or reject is exclusively within the
hands of the judiciary.

5. Thus, for all intents and purposes, the transfer of

judges by the President of Pakistan, by means of the
impugned Notification No. F.10 (2)/2024-A.II, dated 1st
February 2025 (“Notification”) is within the framework
of the Constitution and cannot be declared ultra vires.

6. We are sanguine that in normal circumstances, the

decision on inter se seniority disputes or disagreements
amongst the judges of a High Court are within the
domain of the Chief Justice of that High Court, at the
administrative side, but here the matter relates to the
transfer of judges from other High Courts to the
Islamabad High Court. Thus, the seniority issue is not
exactly inter se seniority within the existing strength of
judges of one and the same High Court, prior to
bringing forth the transfer of three judges under Article
200 of the Constitution, but is somewhat cropped up
between the transferee judges and the judges that
already existed prior to the transfer. At this juncture, it
is also pertinent to mention that there is no All Pakistan
Cadre/unified or combined seniority list of High Court
judges for determining their seniority at the time of
transfer. Therefore, in our view, the terms and
conditions of transfer (permanently or temporary)
including seniority should have been taken up and
mentioned by the President of Pakistan at the time of
issuing the Notification of transfer in terms of Article
200 of the Constitution.

7. As a result of the above discussion, we partially

remand the matter to the President of Pakistan, without
upsetting the Notification of transfer, to determine the
seniority after examining/vetting the service record of
the transferee judges as soon as possible, including the
question of whether the transfer is on a permanent or
temporary basis.

8. Till such time that the seniority and nature of

transfer (permanent or temporary) of the transferee
judges is determined by the President of Pakistan by
means of notification/order, Mr. Justice Sardar
Muhammad Sarfraz Dogar, already holding the office of
Const.Ps.No.22, 20, 25-28 & 30/2025 -55-

Acting Chief Justice of the Islamabad High Court, will

continue to perform as the Acting Chief Justice of the
Islamabad High Court”.

Above are the reasons assigned to the majority judgment in

support of short order.

Judge

I concur subject to
the reasons recorded
separately (Salahuddin
Panhwar-J)

Judge Judge

Islamabad
18.09.2025
Khalid
Approved for reporting.

ORDER OF THE COURT SIGNED & ANNOUNCED

BY THE CONSTITUTION BENCH ON 19.6.2025

By majority of 3 to 2 (comprising Justice Muhammad

Ali Mazhar, Justice Shahid Bilal Hassan, and Justice
Salahuddin Panhwar), all the Constitution Petitions
are disposed of along with Misc. Applications in
terms of the Short Order dated 19.06.2025. Whereas,
Justice Naeem Akhter Afghan and Justice Shakeel
Ahmad, vide their own short order dated 19.06.2025
allowed the Constitution Petitions and set aside the
impugned Notification No.F.10(2)/2024-A.II, dated
01.02 2025.