Case Summary & Legal Holding

This judicial decision was delivered by the SUPREME-COURT. The matter involves proceedings between JUSTICE MOHSIN AKHTAR KAYANI, JUDGE and The PRESIDENT OF PAKISTAN, PAK SECRETARIAT, ISLAMABADHonorable Justice Naeem Akhter AfghanMuneer A. Malik,Mansoor Usman Awan, officially reported as 2025 PLD 516. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

P L D 2025 Supreme Court 516 Present: Muhammad Ali Mazhar, Naeem Akhter Afghan, Shahid Bilal Hassan,

Salahuddin Panhwar and Shakeel Ahmad, JJ. JUSTICE MOHSIN AKHTAR KAYANI, JUDGE and others---Petitioners Versus The PRESIDENT OF PAKISTAN, PAK SECRETARIAT, ISLAMABAD and others---Respondents Constitution Petitions Nos. 22, 20, 25 to 28 and 30 of 2025, decided on 19th June, 2025. (Constitutional Petitions under Article 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) Per Muhammad Ali Mazhar, Shahid Bilal Hassan and Salahuddin Panhwar, JJ.; Naeem Akhter Afghan and Shakeel Ahmad, JJ. dissenting. [Majority view] (a) Constitution of Pakistan--- ----Arts. 175A, 184(3), 200(1) & 200(2)---Islamabad High Court Act (XVII of 2010), S. 3---Judges from Lahore High Court, Sindh High Court and Balochistan High Court transferred to Islamabad High Court by the President of Pakistan under Article 200(1) of the Constitution---Dispute over seniority between the transferred judges and judges that already existed prior to the transfer---Whether transfer of a Judge of the High Court to another High Court by the President amounted to a fresh appointment?---Held: Powers of the President of Pakistan under Sub-article (1) of Article 200 of the 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---Article 200 of the Constitution is absolutely not dependent, concomitant, or at the mercy of Article 175A of the Constitution, but is an independent and stand alone 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---Transfer of a judge by the President of Pakistan by 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---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---Section 3 of the Islamabad High Court Act, 2010 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 said 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---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 ) was within the framework of the Constitution and cannot be declared ultra vires---There was no All Pakistan Cadre/unified or combined seniority list of High Court judges for determining their seniority at the time of transfer, therefore, 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---Supreme Court partially remanded 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 was on a permanent or temporary basis---Supreme Court directed that till such time that the seniority and nature of transfer (permanent or temporary) of the transferee judges was determined by the President of Pakistan by means of notification/ order, the Judge already holding the office of Acting Chief Justice of the Islamabad High Court, would continue to perform as the Acting Chief Justice of the Islamabad High Court---Constitutional petitions were disposed of accordingly along with the applications. [Majority view] (b) Constitution of Pakistan--- ----Art. 200---Transfer of High Court judges from one High Court to another---Powers of the President of Pakistan---Scope---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---It means that 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 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. Per Naeem Akhter Afghan, J. dissenting; Shakeel Ahmad, J. agreeing. [Minority view] (c) Constitution of Pakistan--- ----Arts. 2A, 4, 25, 175A, 184(3), 200(1) & 200(2)---Islamabad High Court Act (XVII of 2010), S. 3---Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024, R. 6---Judges from Lahore High Court, Sindh High Court and Balochistan High Court transferred to Islamabad High Court by the President of Pakistan under Article 200(1) of the Constitution---Dispute over seniority between the transferred judges and judges that already existed prior to the transfer---Whether transfer of a Judge of the High Court to another High Court by the President of Pakistan was a temporary appointment?---Held: Three Judges in question who had been transferred to Islamabad High Court (IHC) had been transferred by the President vide impugned notification on permanent basis---Clause (1) and Clause (2) of Article 200, read in conjunction with each other, do not provide for permanent transfer of a Judge of a High Court from one High Court to another High Court, but provide for transfer of a Judge of a High Court from one High Court to another High Court for a period i.e. on temporary basis---Permanent transfer of three Judges to IHC had been made by the President in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution---It had offended Article 175A of the Constitution and had made the same redundant---Process for permanent transfer of three Judges to IHC suffered from concealment of relevant and material facts from the transferee Judges, from the Chief Justices of the Islamabad High Court (IHC), Lahore High Court (LHC), Sindh High Court (SHC), Balochistan High Court (BHC) and from the Chief Justice of Pakistan (CJP)---Process for permanent transfer of three Judges to IHC was also lacking meaningful, purposive and consensus oriented consultation with the Chief Justices of IHC, LHC, SHC, BHC and CJP on all the relevant issues---Process for permanent transfer of three Judges to IHC had been completed in an unnecessary haste, and suffered from mala fide in facts as well as mala fide in law---Transfer had not been made by the President in the public interest---While transferring the three Judges to IHC on permanent basis, the President had failed to apply his independent mind with an objective opinion---Object of proportionate representation of all the Provinces in IHC could have conveniently been achieved by making fresh appointment of Judges from the Provinces by the Judicial Commission of Pakistan (JCP) under Article 175A of the Constitution as Rule 6 of the Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024 binds/mandates the Members of the JCP to ensure proper diversity in terms of region as well as gender and religion, subject to the prescribed criteria---Transfer of Judges in the present case was violative of Articles 2A, 4 and 25 of the Constitution and it had undermined the independence of judiciary, due process and principle of equality---Impugned Notification No.F.10(2)/2024-A.II dated 1st February 2025 issued by the Secretary, Ministry of Law and Justice, Government of Pakistan, whereby in exercise of powers conferred by Clause (1) of Article 200 of the Constitution, the President of Pakistan had transferred one Judge each from the Lahore High Court, High Court of Sindh and High Court of Balochistan to Islamabad High Court, was declared null and void and of no legal effect---Constitutional petitions were allowed. [Minority view] (d) Constitution of Pakistan--- ----Art. 200---Transfer of High Court judges from one High Court to another---Powers of the President of Pakistan---Scope---Clause (2) of Article 200 of the Constitution is subservient to Clause (1) of Article 200 of the Constitution and both are interconnected---According to the doctrine of harmonious construction, while interpreting Clause (1) and Clause (2) of Article 200 of the Constitution, both the clauses have to be harmonized and, being consistent with each other, have to be read in conjunction with each other for giving effect to both without creating conflict or absurdity. (e) Administration of justice--- ----If a case can be decided on other or narrower grounds, the court will abstain from deciding a larger constitutional question than what is necessary for the determination of the case. "Treatise on constitutional limitations" by Cooley pages 159 to 186; "Constitutional Law of India" Vol-I by H.M. Seervai, pages 260 to 262; "Fundamental Law of Pakistan" by the late Mr. A.K. Brohi, pages 562 to 592; "Judicial Review of Public Actions" Vol-I by Mr. Justice Fazal Karim, pages 488 to 492 and Lahore Development Authority v. Imrana Tiwana 2015 SCMR 1739 ref. (f) Constitution of Pakistan--- ---Arts. 175A & 200---Transfer/appointment of Judges of the Superior Courts---No role of intelligence agencies---Intelligence agencies, including Inter-Services Intelligence (ISI), have no role under the Constitution for appointment or transfer of Judges---Being subordinate to the Executive, the intelligence agencies, including ISI, cannot override the Executive, the Judiciary, the Constitutional bodies and the Constitutional office holders. For the Petitioners: Muneer A. Malik, Senior Advocate Supreme Court Salahuddin Ahmed, Advocate Supreme Court Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.P. No. 22 of 2025) assisted by Ms. Zainab Janjua and Ms. Faaiza Qazi, Advocates. Idrees Ashraf Malik, Advocate Supreme Court Raja Muqsit Nawaz Khan, Advocate Supreme Court (in C.Ps. Nos. 20 and 25 of 2025) Hamid Khan, Senior Advocate Supreme Court Waqar Rana, Advocate Supreme Court Ajmal Ghaffar Toor, Advocate Supreme Court (in C.Ps. Nos. 26 and 27 of 2025) Faisal Siddiqi, Advocate Supreme Court Riasat Ali Azad, Advocate Supreme Court Anis Muhammad Shahzad, Advocate-on-Record Assisted by M. Ammar Rafique and Sikandar Naeem Qazi, Advocate (in C.Ps. Nos. 28 and 30 of 2025). For the Respondents: For the Federation, the President of Pakistan Registrar SCP and Secretary JCP Mansoor Usman Awan, A.G.P. Ch. Aamir Rehman, Addl. A.G.P. Raja Shafqat Mehmood Abbasi, D.A.G. Muhammad Amir Malik, Advocate-on-Record Assisted by: Mr.Hasan Mehmood, Legislative Advisor, Ministry of Law, Ms. Mariyam Ali Abbasi and Saad Javed Satti, Advocates. For Province of Punjab: Muhammad Amjad Pervaiz, A.G. Waseem Mumtaz Malik, Addl. A.G. Rao Muhammad Aurangzeb, Asstt. A.G. Assisted by: Muhammad Adil Chattha, Sr.Consultant For Province of Sindh: Suresh Kumar, Addl. A.G. Sibtain Mehmood, Addl. A.G. and Barrister Zeeshan Adhi, Addl. A.G. For Province of KPK: Shah Faisal Ilyas, Addl. A.G. For Province of Balochistan: Muhammad Ayaz Swati, Addl. A.G. and Tahir Iqbal Khattak, Addl. A.G.

For ICT: Ayyaz Shaukat, A.G. and Dr. Mirza Muhammad Usman, Advocate-on-Record For the Registrar LHC: M. Shahid Latif Khan, Dy. Registrar For the Registrar PHC: Wajid Ali Khan, Director (Regulations) (via video link from Peshawar) For the Registrar HCS: Sohail Muhammad Laghari, Registrar (via video link from Karachi) For the Registrar IHC: M. Asif Iqbal, Dy. Registrar For the Transferee Judges: Nemo. 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. SHORT ORDER By majority of 3 to 2, comprising Justice Muhammad Ali Mazhar, Justice Shahid Bilal Hassan, and Justice Salahuddin Panhwar, the aforesaid Constitution Petitions are disposed of in the following terms, subject to amplification in detail: 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 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 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 Acting Chief Justice of the Islamabad High Court, will continue to perform as the Acting Chief Justice of the Islamabad High Court. 2. All Civil Misc. Applications are also disposed of accordingly. Sd/- Judge Sd/- Sd/- Judge Judge ORDER NAEEM AKHTER AFGHAN, J.---For the reasons to be recorded later on, all the Constitution Petitions are accepted. The impugned Notification No.F.10(2)/2024-A.II dated 1st February 2025 issued by the Secretary, Ministry of Law and Justice, Government of Pakistan, whereby in exercise of powers conferred by Clause (1) of Article 200 of the Constitution of Islamic Republic of Pakistan, 1973 (The Constitution), the President of the Islamic Republic of Pakistan (The President) has transferred Mr. Justice Sardar Muhammad Sarfraz Dogar, Judge, Lahore High Court (LHC), Mr. Justice Khadim Hussain Soomro, Judge, High Court of Sindh (SHC) and Mr. Justice Muhammad Asif, Additional Judge, High Court of Balochistan (BHC) to Islamabad High Court (IHC), is declared null, void and of no legal effect on the following amongst other grounds: 1. Clause (2) of Article 200 of the Constitution is subservient to Clause (1) of Article 200 of the Constitution and both are interconnected; 2. According to the Doctrine of Harmonious Construction, while interpreting Clause (1) and Clause (2) of Article 200 of the Constitution, both the clauses have to be harmonized and, being consistent with each other, have to be read in conjunction with each other for giving effect to both without creating conflict or absurdity; 3. When Clause (1) and Clause (2) of Article 200 of the Constitution are read in conjunction with each other, it provide that when, in exercise of his discretion, the President transfers a Judge of a High Court from one High Court to another High Court, during the period for which he serves as a Judge of the High Court to which he is transferred, the Judge so transferred is entitled to such allowances and privileges, in addition to his salary, as determined by the President; (Emphasis laid) 4. During arguments, the learned Attorney General for Pakistan conceded and categorically conveyed to the Court on behalf of the Federation of Pakistan that the three Judges have been transferred by the President to the IHC vide impugned notification on permanent basis. Clause (1) and Clause (2) of Article 200, read in conjunction with each other, do not provide for permanent transfer of a Judge of a High Court from one High Court to another High Court and it provide for transfer of a Judge of a High Court from one High Court to another High Court for a period i.e. on temporary basis; (Emphasis laid) 5. The permanent transfer of three Judges to IHC has been made by the President in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution. 6. It has offended Article 175A of the Constitution and has made the same redundant; 7. The process for permanent transfer of three Judges to IHC is suffering from concealment of relevant and material facts from the transferee Judges, from the Chief Justices of the IHC, LHC, SHC, BHC and from the Hon'ble Chief Justice of Pakistan (CJP); 8. The process for permanent transfer of three Judges to IHC is also lacking meaningful, purposive and consensus oriented consultation with the Chief Justices of IHC, LHC, SHC, BHC and Hon'ble CJP on all the relevant issues; 9. The process for permanent transfer of three Judges to IHC has been completed in an unnecessary haste; 10. It is suffering from mala fide in facts as well as mala fide in law; 11. It has not been made by the President in the public interest; 12. While transferring the three Judges to IHC on permanent basis, the President has failed to apply his independent mind with objective opinion; 13. The object of proportionate representation of all the Provinces in IHC could have conveniently been achieved by making fresh appointment of Judges from the Provinces by the Judicial Commission of Pakistan (JCP) under Article 175A of the Constitution as Rule 6 of the Judicial Commission of Pakistan…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from SUPREME-COURT
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant