Mr. Justice Anwar Zaheer Jamali Mr. Justice Mian Saqib Nisar M

Const. Petition No.127 of 2012 3On Court noticeOn Court notice(amici curiae):On Court’s Call:Dates of Hearing:Mr. Irfan Qadir, Attorney General for Pakistan.Mr. Azam Khan Khattak, Addl. AG., Balochistan.Mr. Muhammad Qasim Mirjut, Addl. AG, Sindh.Mr. Muhammad Hanif Khatana, Addl. AG PunjabSyed Arshad Hussain Shah, Addl: AG, KPKKhawaja Haris Ahmed, Sr. ASCMr. Salman Akram Raja, ASCMr. Abdul Qadeer Ahmed,Deputy Accountant General, Sindh.26 th , 27 th , 28 th , 29 th March, 2013 and2 nd , 3 rd , 8 th , 9 th , 10 th & 11 th April, 2013.JUDGMENTAnwar Zaheer Jamali, J.- By our short orderannounced in open Court on 11.4.2013, this case and the otherconnected cases were disposed of in the following manner:-“…..we hereby, in exercise of all the enabling powers vested inthis Court, hold and declare that the law enunciated in the caseof Accountant General Sindh and others versus Ahmed Ali U.Qureshi and others (PLD 2008 SC 522) is per incuriam andconsequently this judgment is set aside. The titled appeal isaccepted and the judgment impugned therein is also set aside.Other miscellaneous applications moved therein and in theseproceedings are dismissed accordingly.”In support of above short order, now we proceed to record ourdetailed reasons as under:-2. This Petition, for suo moto review of judgment dated6.3.2008, passed in Civil Appeal No.1021 of 1995, other connectedpetitions and miscellaneous applications, emanates from the officenote dated 21.11.2012 submitted by the Registrar of the SupremeCourt of Pakistan for the perusal of Honourable Chief Justice,which reads thus:-“It is submitted that the Civil Petition for Leave toAppeal No. 168-K of 1995 was filed in this Court by theAccountant General Sindh, challenging the validity ofthe judgment of High Court of Sindh, at Karachi, dated02.02.1995, wherein the Court had granted the relief ofpension to the respondent (since dead), a former judge

Const. Petition No.127 of 2012 4of the High Court of Sindh, who while holding the postof District and Sessions Judge was posted as Secretaryto the Government of Sindh, Law Department and waselevated as Additional Judge, High Court of Sindh in1985. He retired on 25.10.1988 and was allowedpension at the rate of Rs.4,200 per month with thebenefit of commutation, gratuity and additional sum ofRs.2,100 per month as cost of living allowance payableto a retired Judge of the High Court under paragraph16-B of President's Order No.9 of 1970, as amended byP.O. No.5 of 1988. In pursuance of the Constitution(Twelfth Amendment) Act, 1991 (Act XIV of 1991), thepension of the respondent was revised and fixed asRs.6300 per month and thereafter by virtue of P.O. No.2of 1993, the pension of retired Judges of superiorjudiciary was again revised, wherein the pension of HighCourt Judges was fixed with minimum and maximumratio of Rs.9.800 and Rs.10,902 per mensum but thisincrease in pension was declined to the respondent onthe basis of departmental interpretation of thePresident's Orders referred to above read with FifthSchedule of the Constitution. The respondentthereafter, invoking the Constitutional jurisdiction ofthe High Court, filed a constitution petition wherein hesought a declaration that he was also entitled to thebenefit of P.O. No.2 of 1993. Relief was granted to himby the Sindh High Court. The Accountant General,Sindh feeling aggrieved approached this Court by filingsaid Civil Petition for Leave to Appeal.2. Leave to appeal was granted by this Courtvide order dated 28th August 1995, on the followingterms:"2. So far the main petition is concerned, it issubmitted by the learned Deputy Attorney General forthe petitioner that respondent No.1 was a District andSession Judge and was elevated as Judge of theHigh Court in July, 1985 and retired after completingtenure of three years two months and twenty-sevendays in that capacity, hence for the purpose ofpension his case is covered by Article 15 of the HighCourt Judges (Leave, Pension and Privileges) Order,1970, which is applicable to such judges of the HighCourt who retire before completion of five yearsservice in the High Court and are entitled to drawpension as having retired from the service they weretaken from for elevation to the High Court.

Const. Petition No.127 of 2012 53. Leave is granted to examine the followingquestions. Firstly, whether for claim of respondentNo.1 for extra/maximum pension writ petition beforethe High Court was competent to and maintainable.Secondly, whether P.O.9/70 is to be read inconjunction with P.O.2/93, P.O.3/95 and Article 205read with Fifth Schedule to the Constitution, if yes,what will be its effect on the claim of respondent.Thirdly, whether the President can only increase ordecrease the amount of pension with altering theterms and conditions as contemplated under Article205 read with the Fifth Schedule to the Constitution.Fourthly, whether respondent No.1 is entitled to theminimum and maximum amount of the pension ascontemplated under P.O.2/93."3. Pending disposal of the Appeal, a number ofother retired Judges of the High Courts, who were notallowed pension on the ground that they having beennot put minimum service of five years in terms ofparagraph 3 of Fifth Schedule to the Constitution werenot entitled to the grant of pension, moved a jointrepresentation to the President of Pakistan, through theMinistry of Law, Justice and Human Rights,Government of Pakistan and having received no reply,filed direct petitions before this Court under Article184(3) of the Constitution, whereas, some of the retiredJudges filed miscellaneous applications to be impleadedas party in the proceedings before this Court.Constitution Petition No.40 of 2002 filed by Mr. Justice(Retd) S.A. Manan was disposed of as withdrawn, but inview of the nature of right claimed in these petitions,this withdrawal was inconsequential to the right ofpension of the judges. The appellant in the main appealand the petitioners in the other constitution petitionssought declaration, as under:a. The provision of President's Order No.3 of1997 was in derogation to Article 205 of theConstitution read with Fifth Schedule of theConstitution wherein the right of pension ofonly those Judges who have put minimum fiveyears of service as Judge of the High Court,was recognized.b. The retired Judges of the High Court,irrespective of their length of service wereentitled to the grant of pension, as per theirentitlement under Article 205 read withparagraph 2 of the Fifth Schedule of theConstitution.4. On 06.3.2008, the Civil Appeal No. 1021 of1995 and the connected constitution petitions involving

Const. Petition No.127 of 2012 6common question of law and facts, were disposed ofthrough the single judgment (PLD 2008 SC 522) bythree member Bench of this Court comprising Mr.Justice Nawaz Abbasi, Mr. Justice Muhammad QaimJan Khan and Mr. Justice Muhammad FarrukhMahmud in the following terms:“34. In consequence to the above discussion,the Constitution Petitions Nos. 8/2000,10/2001, 26/2003, 34/2003, 04/2004 and26/2007, filed by the retired Judges of theHigh Courts are allowed and thepetitioners/applicants in these petitions andmiscellaneous applications, along with allother retired Judges of the High Courts, whoare not party in the present proceedings, areheld entitled to get pension and pensionarybenefits with other privileges admissible tothem in terms, of Article 205 of theConstitution read with P.O.No.8 of 2007 andArticle 203-C of the Constitution read withparas 2 and 3 of Fifth Schedule and P.O. No.2of 1993 and P.O.3 of 1997 from the date oftheir respective retirements, irrespective oftheir length of service as such Judges.”5. It is evident from the above that the matterwas decided on the basis of High Court Judges(Pensionary Benefits) Order, 8 of 2007. This Order waspromulgated on 14.12.2007 and at the time of decisionof the matter was considered as a valid piece oflegislation. But subsequently, vide this CourtJudgment dated 31.07.2009 (Sindh High Court BarAssociation V. Federation of Pakistan), reported as (PLD2009 SC 879) this P.O 8 of 2007 was declaredunconstitutional, illegal, ultra vires and void ab initio.The relevant paragraph of said judgment is reproducedas under:“179. All the acts/actions done or taken by GeneralPervez Musharraf from 3rd November, 2007 to 15thDecember, 2007 (both days inclusive), that is to say,Proclamation of Emergency and the subsequent'acts/actions done or taken in pursuance thereof,having been held and 'declared to be unconstitutional,illegal, ultra vires and void ab initio are not capable ofbeing condoned. These include Proclamation ofEmergency and the PCO No.1 of 2007 issued by himas Chief of Army Staff and Oath Order, 2007 issuedby him as President of Pakistan in pursuance of theaforesaid two instruments, all dated 3rd November,2007; Provisional Constitution (Amendment) Order,2007 dated 15 th November, 2007; Constitution(Amendment) Order, 2007 (President's Order No.5 of2007 dated 20th November, 2007); Constitution(Second Amendment) Order, 2007 (President's OrderNo.6 of 2007 dated 14th December, 2007);, Islamabad

Const. Petition No.127 of 2012 7High Court (Establishment) Order 2007 (President'sOrder No.7 of 2007 dated 14th December 2007); HighCourt Judges (Pensionary Benefits) Order, 2007(President's Order No.8 of 2007 dated 14thDecember, 2007) and Supreme Court Judges(Pensionary Benefits) Order, 2007 (President'sOrder No.9 of 2007 dated 14th December, 2007).The aforesaid actions of General Pervez Musharraf arealso shorn of the validity purportedly conferred uponthem by the decisions in Tikka Iqbal MuhammadKhan's case. The said decisions have themselves beenheld and declared to be coram non judice and nullityin the eye of law. The amendments purportedly madein the Constitution in pursuance of PCO No. 1 of 2007themselves having been declared to beunconstitutional and void ab initio, all the actions ofGeneral Pervez Musharraf taken on and from 3rdNovember, 2007 till 15th December, 2007 (both daysinclusive) are also shorn of the validity purportedlyconferred upon them by means of Article 270AAA.”6. It is further submitted that the issue in handhas far reaching implications. The practical effect of thejudgment is that Judges of the superior courts arebeing granted pension and pensionary benefits withoutany consideration of tenure or length of service.7. It is pointed out that Supreme Court in thecase of Province of Punjab v. Dr. Muhammad DaudKhan Tariq (1993 SCMR 508) held that it is not againstany principle for the Courts of this country to protectthe interest of the tax-payers as well as the publicexchequer notwithstanding the follies or illogical andsome times even casual attitude of the custodians of thepublic exchequer. Furthermore, this Court in the caseof Secretary, Board of Revenue, Punjab v. Khalid AhmadKhan (1991 SCMR 2527) held that the Government haschosen to spend much more on the litigation instead ofpaying Rs. 15,000 as judgment-debt to the respondenttowards the discharge of the decree in case wheresubstantial justice has been done. Further, althoughthe law point has been decided in favour of theappellants yet in the interest of justice we do not wantto inflict further heavy burden on the public exchequer;which would indeed be burdened with more expenses.8. The matter is therefore of great publicimportance as huge public money is being expendedwithout any legal justification despite the fact that thebasis of judgment itself has lost its validity. It istherefore a fit case for Suo Moto Review.

Const. Petition No.127 of 2012 89. There are precedents, when this Court tookup issues suo moto in the interest of justice. In the caseof rowdysim in the Supreme Court premises titledShahid Orakzai v PML(N) (2000 SCMR 1969), a Bench ofthree Judges acquitted the contemnor. CriminalOriginal Petition was filed by the Petitioner and thesame was heard by a Bench of 5 Judges and the samewas converted into Appeal. It was objected that thematter could not be reviewed by filing a CriminalOriginal Petition by a third person who was not party inthe matter. However, the Counsel for the Contemnerconceded that this Court is not precluded from recallingof its earlier order by taking Suo Moto action on comingto know that such miscarriage of justice had occurreddue to the Court having proceeded on wrong premises.It was held that under Article 187(1) of the Constitution,Supreme Court can recall its earlier order by taking SuoMoto action on coming to now that sum miscarriage ofjustice has occurred. In yet another judgment, whentwo different interpretations by two Benches of theSupreme Court taking contrary views of the judgment ofShariat Appellate Bench passed in a pre-emption caseof Said Kamal Shah, a Suo Moto Review (PLD 1990 SC865) was taken by the Shariat Appellate Bench to clarifythe effect of its judgment given in the said case. Again,it was held in the case State v. Zubair (PLD 1986 SC173) that if a Judge of High Court had heard a bailapplication of an accused person, all subsequentapplications for bail of the same accused or in the samecase, should be referred to the same Bench/Judgewherever he is sitting and in case it was absolutelyimpossible to place the second or subsequent bailapplication before the same Judge, who had dealt withthe earlier bail application of the same accused or in thesame case in such cases, the Chief Justice of theconcerned High Court may order that it be fixed fordisposal before any other Bench/Judge of that Court.The Supreme Court by taking suo moto action of thedifficulties arising out of the strict implementation ofthe ratio in the State v. Zubair and on receipt of thereports from the High Courts and hearing the AttorneyGeneral of Pakistan and Advocates-Generals of the

Const. Petition No.127 of 2012 9Provinces it was observed (2002 SCMR 177) that thespirit underlying the said case which still held the filedwas not intended to create difficulties/bottlenecks or towork prejudicially to the interest of all concerned. It washeld that the rule laid down in the above case shallcontinue but due to exigency of service or any othersufficient cause departure can be made in the largeinterest of justice and may be referred to any otherbench for reason to be recorded in writing by the ChiefJustice. Recently, a Constitution Petition filed forrevisiting of this Court judgment dated 13.9.2011passed in Constitution Petition No. 50/2010 fordeclaratory judgment regarding existence of Article186A of the Constitution was treated as Civil MiscApplication (CMA No. 4711/2012 in ConstitutionPetition No. 50/2010) for the purpose, which awaitshearing before the Court.10. In view of the above, if approved, Suo Motoaction may be taken in the matter for review ofjudgment dated 6.3.2008 passed in Civil Appeal No.1021 of 1995 etc and the matter may be fixed before aLarger Bench comprising minimum five members.Registrar21.11.2012HCJ 223. Taking notice of the facts and circumstances disclosed inthe above reproduced submission note, coupled with the legalposition canvassed therein for taking cognizance in the matter, on23.11.2012, following order was passed by the Honourable ChiefJustice of Pakistan:-“Perusal of above note prima facie makes out a casefor examination of points raised therein. Therefore,instant note be registered as Suo Motor Misc.Petition and it may be fixed in Court in the weekcommencing from 03.12.2012. Notice to Hon’bleRetired Judges, who are beneficiaries of thejudgment dated 6.3.2008 be issued. Office shall

Const. Petition No.127 of 2012 10provide their addresses. Notice to Attorney Generalfor Pakistan may also be issued.”.It is in this background that subsequently this petition cameup for hearing before this five member larger Bench:-4. At the commencement of the proceedings in the matter,Syed Iftikhar Hussain Gillani, learned senior ASC, representingeight of the honourable retired judges of the High Court, M/s RiazKiyani, Muhammad Aqil Mirza, Sharif Hussian Bukhari, GhulamMehmood Qureshi, Abdul Hafeez Cheema, Dr. Munir AhmedMughal, Tariq Shamim and Rao Iqbal Ahmed Khan, JJ and thewidow of one honourable retired Judge Raja Muhammad Khurshid,who have been issued notices of these proceedings, came at therostrum and made his submissions as one of the lead counsel forthese judges.5. At the outset, he gave a brief summary of the relevantfacts regarding the services rendered by the judges represented byhim, to show their actual period of service as judge of the HighCourt before becoming entitled for pensionary benefits in the lightof judgment dated 6.3.2008, passed in civil appeal No.1021/1995and other connected petitions (PLD 2008 SC 522), (hereinafterreferred to as the “judgment under challenge”). In the samecontext, he also made reference of C.M.A No.802/2013, whichcontains relevant facts as regards their respective service as judgeof the High Court. He further made reference to the statement inwriting subsequently submitted by him, containing theformulations of his arguments, which read as under:-“a.Entitlement to the remuneration of the Judges of the SuperiorCourts are guaranteed by the Constitution and no Sub-Constitutional legal instrument can take away such entitlement.

Const. Petition No.127 of 2012 11b. Para 2 in the V th Schedule is an independent provision and is notto be ‘governed’ by Para 3.c. Dictum of Qureshi’s judgment reported in PLD 2008 SC 522 wasnot decided ‘on the basis’ of the Presidential Order 8 of 2007, asobserved in para 5 of learned Registrar’s note, but founded on themandate of the Constitution.d. That High Court Judges (Leave, Pension and Privileges) Order,1997 (President’s Order 3 of 1997) is violative of Article-205 andSchedule V of the Constitution.”6. The learned Sr.ASC referring to some legal aspects of thecontroversy involved in the present petition, made specificreference to all the relevant statutes starting from the Governmentof India Act, 1935 upto the Constitution of 1973 as well as variousorders and President’s Orders issued in this regard from time totime. Making reference to the language of Article 205 read withparagraph-2 of its Fifth Schedule, relating to High Court judges, heemphasized that the language of paragraph-2 of the FifthSchedule, commencing from the word “Every judge” makes itabundantly clear that irrespective of his length of service, everyjudge, once elevated to the High Court is entitled, inter alia, for thepensionary benefits while the authority for determination vestedwith the President in terms of this para is only confined to thequantum of such pension and nothing more. He added thatparagraph-3 of the Fifth Schedule to Article 205 of theConstitution, which was available in the original text of theConstitution of 1973, and subsequently amended in the year 1991,was to be read independent and separate from paragraph-2, whichprovides for pensionary benefits for the two categories of thehonourable retired judges, depending upon their length of service,when read in conjunction with it. He reiterated that every judge ofthe High Court is entitled for pensionary benefits, but for thedetermination of quantum of such benefit, they are categorized

Const. Petition No.127 of 2012 12into two; one, who have served as such for a period of five years ormore and, the others, having served for less than five years.According to Mr. Gillani, insofar as the entitlement of pensionarybenefits of those judges of the High Courts is concerned, who haverendered more than five years of service, there is no dispute orcontroversy at all about their entitlement of pensionary benefits.However, for the other category of judges, having rendered lessthan five years actual service, till date no independentdetermination, as required by law and under the Constitution, hasbeen made by the President. At this stage, he also made referenceto the judgment under challenge to show that it was in thisbackground of the controversy that this Court resolved the issue ofpensionary benefit of all the retired judges, including those, whohave rendered less than five years service, and such conclusionbased on valid reasonings is not open to interference in any form.More so, in a situation when such judgment was passed more thanfour years ago; it has already been implemented in its letter andspirit, and not challenged by the Government or from any othercorner.7. Touching to the moral side of this controversy relating topayment of pension, he further argued that all judges of thesuperior judiciary, including those who have retired from theiroffice before rendering complete five years actual service as HighCourt Judge, are highly respected segment of the society, who needto maintain special protocol befitting to their earlier status andoffice; further in terms of Article 207 of the Constitution, they aredisqualified to practice in the same High Court. In suchcircumstances, merely due to the fact that they have rendered less

Const. Petition No.127 of 2012 13than five years of service in the said position, they cannot bediscriminated and deprived of such benefit, which in turn would,in many cases, result in leaving them at the mercy of the societyfor the purpose of meeting their financial needs in the old age. Inorder to gain support to his submissions, learned Sr. ASC furthermade reference to 12 th Constitutional Amendment; President’sOrder No.2 of 1993 (PLD 1994 C.S 192) and President’s Order No.5of 1996 (PLD 1997 C.S 199) and relied upon the cases reported asM.A Rashid v. Pakistan (PLD 1988 Quetta 70), Ahmed Ali U.Qureshi v. Federation of Pakistan (PLD 1995 Karachi 223) and I.ASharwani v. Government of Pakistan (1991 SCMR 1041). Amongstthese cases, in the 1 st case decided by learned Division Bench ofBalochistan High Court on 08.5.1988, a dispute was agitated byhonourable retired Justice M.A Rashid, as regards the entitlementof his pensionary benefits under the High Court Judges (Leave,Privileges and Pension) Order, 1970 qua the effect of amendingorder 5 of 1983, of which benefit was refused to him. In this case,the honourable Judge of the Balochistan High Court had initiallyadorned the office in that position on 07.10.1974, after beingelevated to the High Court of Sindh and Balochistan. Thereafter heceased to hold the office as Judge of the Balochistan High Courtw.e.f. 25.3.1981, after having served for a period of more than sixyears. The Court, while holding him entitled for the benefit ofamending order 5 of 1983, concluded that Constitution is afundamental document and while interpreting a provision of theConstitution, article thereof must receive a construction whichwould be beneficial to the widest maximum extent. Moreover,making reference to some Presidential Orders, the Court observedthat such Orders nowhere stipulate that the benefit of these

Const. Petition No.127 of 2012 14Presidential Orders would not be available to the Judges who hadretired before the dates mentioned in the two orders, as the Ordersare clear and admit of no ambiguity, therefore, the necessaryconclusion would be that the benefit of these Orders would beavailable to all the Judges irrespective of their date of retirement.The 2 nd case of Ahmed Ali U. Qureshi (supra), need not bediscussed here as it was against the same judgment that an appealwas preferred before this Court, which was decided vide judgmentunder challenge dated 6.3.2008. The 3 rd case of I.A Sharwani(supra) is also not being discussed here as it will be discussed indetail in some later part of the judgment.8. At the conclusion of his arguments, Mr. Gillani also madereference to Article 260 of the Constitution to show the definition of‘remuneration’, which includes the word ‘pension’, however, whenconfronted with other definitions contained in this Article, heconceded that since ‘pension’ has been separately defined therein,therefore, its inclusion in the definition of “remuneration” will notmake much difference.9. After conclusion of arguments of Mr. Iftikhar HussainGillani, Mr. Munir A. Malik, learned Sr. ASC, who is representingfour other honourable retired judges M/s Majida Rizvi, NadeemAzhar Siddiqui, Mrs. Qaiser Iqbal and Tariq Mehmood, JJ, came atthe rostrum and made his submissions. In the first place, he madereference of C.M.A’s No.867 to 869 of 2013, to give some detailsabout the services rendered by each one of them as honourablejudge of High Court, particularly the dates of their appointment asan additional judge, permanent judge; and retirement/resignation,with total length of their respective service. Before commencing his

Const. Petition No.127 of 2012 15arguments on legal footing, Mr. Malik, frankly stated that none ofthe retired judge of the High Court represented by him hasrendered actual service as such for a period of five years, but lessthan five years. In the context of entitlement of pensionarybenefits, he gave brief history of constitutional legislation andother provisions of law including the President’s Orderspromulgated/ issued in the sub-continent before and after theindependence of Pakistan from time to time and reiterated thatparagraph-2 of the Fifth Schedule to Article 205 of the Constitutionof 1973 is to be read independently; it covers the right of “everyjudge” of the High Court for the purpose of pensionary benefit to bedetermined by the President, therefore, irrespective of the factwhether no such determination has yet been made by thePresident for the category of those honourable retired judges of theHigh Court, who have rendered service as such for less than fiveyears, they are entitled for the pensionary benefits. Whenconfronted with the query as to how and in what manner thequantum of such pension for these judges could be determined, ifno mode of determination in this regard is available before us inany form, he candidly stated that as yet no such determination hasbeen made by the President even once, nor this matter was earlieragitated by any of the honourable retired judge of the High Court,who had rendered less than five years of service in the said office,since the promulgation of the Constitution of 1973 or even beforethat under the Constitution of 1956 or 1962 etc. The pith andsubstance of his submissions was that “every judge” as mentionedin paragraph-2 of the Fifth Schedule to Article 205, has its ownconnotation and significance which makes it abundantly clear thatthey all are entitled for pensionary benefits, but only the questionof determination of quantum of pension is left with the President in

Const. Petition No.127 of 2012 16line with the spirit of paragraph-2 and nothing more. For thisreason, in either of the two situations when paragraph-2 is readseparately, independently and hermetically or together withparagraph-3, the claim of every retired judge of the High Court forpensionary benefits is fully established. In order to add force to hissubmissions about the entitlement of every judge of the High Courtfor pensionary benefits, he also laid stress upon Article 207 of theConstitution, which places an embargo on every honourable retiredjudge of the High Court from practicing within the territorial limitsof the same High Court, wherein he has served as a permanentjudge even for a single day. In between the lines, his submissionwas that when such an embargo becomes operative againsthonourable retired judges soon after their confirmation then thecondition of five years minimum length of service for theirentitlement to pension as judge of the High Court seems to beinconsistent, illogical, harsh and violative of Article 18 of theConstitution. He also made reference to the National JudicialPolicy 2009 and 2012 and contended that even after retirement,honourable judges of the High Court are required to maintainbefitting standard of living in the society, which may not bepossible for them under financial constraints, thus, their claim forentitlement of pension even for less than five years actual service isfully justified and in accordance with law. However, he added that,indeed, retired judges of the High Court, who have rendered lessthan five years service as such and those who have rendered fiveyears or more service, cannot be placed in the same category forthe purpose of pensionary benefits. He also conceded to theposition that as yet, not even once any determination regardingpensionary benefits of honourable retired judges, who haverendered less than five years service, has been made by the

Const. Petition No.127 of 2012 17President and such purported inaction on his part has never beenchallenged earlier in the history of the Sub-continent and ourCountry either under the dispensation of Government of India Act,1935 or the Constitutions of 1956, 1962 and 1973, except thepresent litigation emanating from the case of Ahmed Ali U.Qureshi. In his further submissions learned ASC also dilated uponthe concept of independence of the judiciary as a third pillar of theState, which, according to him, also covers its financialindependence qua right to pension for every judge of the HighCourt irrespective of his length of service in the office.10. Mr. Munir A. Malik, learned Sr. ASC in his furtherarguments, made reference to the office note dated 21.11.2012,submitted by the Registrar of Supreme Court of Pakistan for theperusal of Honourable Chief Justice of Pakistan, which formedbasis of these proceedings and contended that no doubt videjudgment in the famous case of Sindh High Court Bar Associationv. Federation of Pakistan (PLD 2009 SC 879), President’s OrdersNo.8 of 2007 dated 14.12.2007 and Judges Pensionary BenefitsOrder 9 of 2007, have been declared to be coram non judice andnullity in the eyes of law, but on the basis of this case alone, thejudgment under challenge cannot be set aside, as many otherstrong independent reasons have been recorded in its paragraphs1 to 19, which still hold the field as alternate grounds for grant ofpensionary benefits. Further submissions of Mr. Malik was thateven if the Court comes to the conclusion about the nonentitlementof pensionary benefits for the honourable retiredjudges of the High Court, having rendered less than five yearsservice, keeping in view their high status in the society andbonafide implementation of the judgment under challenge, any

Const. Petition No.127 of 2012 18order contrary to it, if passed, should be made operativeprospectively and not retrospectively. During his furtherarguments, Mr. Munir A. Malik, made detailed reference of P.ONo.9/1970, PO No.7/1991, P.O No.2/1993, P.O No.3/1995, P.ONo.5/1995, P.O No.3/1997 and 12 th Constitutional Amendment inan effort to show that it will be a legitimate and holistic approach ifthe claim of honourable retired judges of the High Court, who haverendered less than five years actual service, is looked intopragmatically and liberally in order to determine their right andquantum of pension, which exercise has not yet been undertakenby the President, though required under the mandate of theConstitution. Making reference to the case of one of the honourableretired judge of Sindh High Court Ms. Majida Rizvi, he also broughtto our notice the judgment dated 1.7.2008 in C.P No.D-24/2002,which remained unchallenged till this date and has, thus,according to him, attained finality. In the end, he made referenceto the principles of locus poenitentiae etc and cited the followingcases:-a) Attiyya Bibi Khan v. Federation of Pakistan(2001 SCMR 1161).b) M/s Haider Automobile Ltd v. Pakistan(PLD 1969 SC 623).c) Elahi Cotton Ltd. v. Federation of Pakistan(PLD 1997 SC 582).d) Amir Khatoon v. Faiz Ahmad (PLD 1991 SC 787).e) R v. A [2001 (3) All England Reporter 1 (17)].11. In the case of Attiyya Bibi Khan, relating to some disputebetween the students of a medical college and the educationalinstitutions, the provisions of Article 25 of the Constitution weredilated upon and in that context it was held that the judgment

Const. Petition No.127 of 2012 19would be operative from the date of its announcement and wouldhave no retroactive legal implications. In the case of M/s HaiderAutomobile Ltd (supra) and other connected case titled Province ofWest Pakistan versus Manzoor Qadir Advocate and another,dispute revolved around the availability of right of practice to aretired judge of the High Court of West Pakistan in view of the barimposed by Ordinance II of 1964. The Court held that thelegislature is competent to make a law and has full and plenarypowers in that behalf and can even legislate retrospectively orretroactively. There is no such rule that even if the Legislature has,by the use of clear and unambiguous language, sought to takeaway a vested right, yet the Courts, must hold that such alegislation is ineffective or strike down the legislation on theground that it has retrospectively taken away a vested right. Afterdetailed discussion, the learned five members Bench of the apexCourt unanimously held that the two learned former judges weredebarred by Ordinance No. II of 1964 from practicing in the HighCourt of West Pakistan or any Court or tribunal subordinate to it.In the case of Elahi Cotton Ltd, discussing some broad principlesof interpretation of statutes qua constitutional provisions viewexpressed by the Court was that the law should be saved ratherthan be destroyed and the Court must lean in favour of upholdingthe Constitutionality of a legislation, keeping in view that the ruleof Constitutional interpretation is that there is a presumption infavour of the Constitutionality of the legislative enactments unlessex facie it is violative of a Constitutional provision. It was furtherheld that where power is contained in the Constitution to legislate,one's approach while interpreting the same should be dynamic,progressive and oriented with the desire to meet the situation,

Const. Petition No.127 of 2012 20which has arisen, effectively. The interpretation cannot be narrowand pedantic, but the Court's efforts should be to construe thesame broadly; so that it may be able to meet the requirements ofan ever changing society. The general words cannot be construedin isolation but the same are to be construed in the context inwhich they are employed. In other words, their colour and contentsare derived from their context. In the case of Amir Khatoon, incriminal proceedings, principle of interpretation of statute wasdiscussed and it was held that if a provision of law is presentingsome difficulty in interpretation, it has to be so interpreted as toharmonise with the other provisions of the Act of which it is a partand it is only when there is a manifest and established failure toharmonise it with the other provisions that it either prevails overother provisions or yields to the other provisions. It was furtherobserved that provisions of any particular Act are to be sointerpreted as to harmonise and to remain consistent with theother laws having a relevance or nexus with the law sought to beinterpreted. In the case of R v A, involving criminal proceedingsrelating to some sexual offence, expressing his view on theprinciple of reading down, it was observed by a learned Member ofthe Bench that this principle is at least relevant as an aid to theinterpretation of section 3 of the 1998 Act against the executive. Asin accordance with the will of parliament reflected in section 3, itwill sometimes be necessary to adopt an interpretation whichlinguistically may appear strained. The techniques to be used willnot only involve the reading down of express language in a statutebut also the implication of provisions. A declaration ofincompatibility is a measure of last resort. It must be avoidedunless it is plainly impossible to do so. If a clear limitation on

Const. Petition No.127 of 2012 21convention rights is stated in terms, such an impossibility willarise.12. At this stage, Mr. Rafique Rijwana, learned ASC, who isrepresenting honourable retired Justice Shah Abdul Rasheed inthese proceedings, made his submissions. He gave relevant datesof his appointment and retirement to show that at the time ofretirement on 11.2.1986, he had served as a judge of the HighCourt for 04-years, 07-months and 05-days. He did not advanceany further arguments except adopting the arguments of SyedIftikhar Hussain Gillani, learned senior ASC, who has alreadymade his submission in this case, as noted above.13. Mr. Hamid Khan, learned Sr. ASC, who is representingseven honourable retired judges of the High Court, at thecommencement of his submissions, made reference to the materialplaced on record by him alongwith C.M.As No.847 to 853 of 2013to give details regarding the service of each of the honourableretired judges represented by him, so as to show their actuallength of service as judges of the High Court. For the purpose ofclearity in his arguments, he divided the honourable retired judgesrepresented by him into two categories i.e. Rana MuhammadArshad Khan and Muhammad Jehangir Arshad, two honourableretired judges, who were elevated to the Bench from the bar andthe remaining five retired judges, who before their elevation, hadrendered about thirty years service in the District judiciary indifferent capacities. Details of these honourable retired judges andother judges in similar position, regarding service rendered bythem, is being provided in the judgment separately in the form of achart.

Const. Petition No.127 of 2012 2214. Mr. Hamid Khan, during his arguments, also placed onrecord written formulations, which read as under:-1. “Para 2 of the schedule 5 has an independent existencefrom that of para 3 and cannot be read as superfluousor redundant, therefore, under the recognized principlesof independence of the Constitution, the Court is calledupon to give comprehensive meaning to this para.2. Despite having independent existence para 2 has to beread with para 3 in order to give meaning of the formerpara, if read together they would cater for two distinctclassifications, one of those who had put in five or moreyears of service and the other of those who have put inless than five years of service and finally within thisformulation that those, who belonged to each of theclassification, are entitled to pension and none of themcan be deprived thereof.3. Reading of two paragraphs together, it can also beconstrued that para 3 lays down a bench mark for thosewho are entitled to pension under para 2, this wouldlead to the exercise of principle of proportionalitynevertheless if will not apply to the petitioners becausesuch a principle can only be applied prospectively.4. That having received pension under a judicialdetermination rights have been vested in favour of thepetitioners which cannot be taken away at this stageunder the established exception to the principle of locuspoenitentiae.5. Having once received pension under the judicialdetermination there is legitimate expectancy on the partof the petitioner to continue to receive such pensionaryamounts, any deprivation at this stage would lead toprivation and financial problems to the petitioners whoare of advanced age.6. There is a special case relating to judges elevated fromthe subordinate judiciary because:-a. They had put a long service before they becomeJudges of the High Court;b. They cannot be relegated to the position of thosewho retired as District Judges and so they cannotbe given the pension of District and SessionJudges.

Const. Petition No.127 of 2012 23c. Doing so would be against the independence ofJudiciary and would undermine the office of aJudge of a High Court.”15. He contended that paragraph-2 of Fifth Schedule toArticle 205 has an independent existence from paragraph-3,otherwise this paragraph would become superfluous andredundant, which status cannot be attributed to any piece oflegislation, as under the well recognized principle of interpretation,every provision of law is to be given its comprehensive meaning.Following the arguments of earlier two learned ASCs, who haveargued the case before him, he insisted that paragraph 2 of FifthSchedule to Article 205 visualizes two categories of judges, butboth of them are equally entitled for pensionary benefits under thePresident’s Orders and in this regard power of determinationconferred to the President is only confined to the quantum ofpensionary benefits and not the determination of right to pensionor otherwise. He further contended that reading of paragraph-2together with paragraph-3 lays down benchmark for those who areentitled under paragraph-2 and in case no determination has beenmade by the President for entitlement of pension of retired judgesof the High Court who have rendered less than five years of actualservice, the principle of proportionality could be applied, but thattoo only prospectively, as the rights accrued and benefits alreadydrawn by the honourable retired judges of the High Court throughjudgment under challenge cannot be withdrawn, being staredecisisand past and closed transaction under a judicialpronouncement. He further submitted that on account of suchjudicial determination, vested rights have accrued in favour ofhonourable retired judges, which cannot be taken away orwithdrawn, being protected under the principle of locus

Const. Petition No.127 of 2012 24poenitentiae. To a question posed to him, whether on the principleof locus poenitentiae, retired judges represented by him seekprotection of only those benefits which have already been drawn bythem or also continuation of such benefits in future, his reply wasthat the principle of legitimate expectancy has accrued in theirfavour to continue receiving such pensionary benefits, which areeven otherwise very necessary for them to meet their financialneeds at this advanced age. Therefore, such benefits in their favour(honourable retired judges of the High Court) shall be continued,irrespective of any adverse pronouncement by this Court in thepresent proceedings. Making his further submissions, he alsoattempted to press into service the principle of past and closedtransaction based on the premise that the judgment underchallenge was announced on 6.3.2008 i.e. more than four yearsago and has already been followed and implemented by theconcerned government functionaries without any objection.16. As to the claim of five honourable retired judges of theHigh Court, who were elevated to the bench after rendering morethan thirty years service in District Judiciary in each case, beforetheir elevation to the High Court, he further submitted that forgrant of pensionary benefits, they cannot be relegated to theposition of retired District and Sessions Judges as it will be a stepagainst the independence of judiciary which will be underminingthe status and office of the judge of a High Court. Making referenceto Fifth Schedule to Article 205 of the Constitution of 1973,Learned senior ASC submitted that the original paragraph-3 in theFifth Schedule was borrowed from the President’ Order 9 of 1970,though in the different form, which was subsequently amendedand introduced in the present form in the year 1991. When

Const. Petition No.127 of 2012 25confronted with a query that in case paragraph-2 (ibid) is to beread independently and separately, then it contains and denotesonly one category of judges and not two, the learned Sr. ASCconceding to this position, criticized the language of paragraph-3(ibid) by submitting that it has been grafted and drafted in theConstitution of 1973 in a crude form so as to leave the honourableretired judges, who have served the institution for a period of lessthan five years, without entitlement of any pensionary benefits. Inthis regard, he also made reference to some relevant Indianprovisions of law and contended that there is no specificprohibition regarding the entitlement of payment of pension to thejudges who have rendered less than five years service in the HighCourt before their retirement either in paragraph-2 or paragraph-3of the Fifth Schedule to Article 205, therefore, the principle thatwhatever is not prohibited is permissible shall be applied on theprinciples of equity and fair-play to address the unforeseendifficulties of the honourable retired judges of the High Court. Thepith and substance of his arguments was that looking to theconstitutional provisions, status of honourable retired judges ofthe High Court in the society and their old age, a pragmaticapproach may be followed by the Court in order to accommodatethem for the purpose of granting them pensionary benefits, whichis lacking determination in specific terms by the President underany of the earlier President’s Orders issued from time to time.17. Mr. Amir Alam Khan, learned ASC, who is appearing inthis matter for five other honourable retired judges of High CourtM/s Muhammad Nawaz Bhatti, Fazal-e-Miran Chohan, SyedAsghar Haider, Sheikh Javed Sarfraz and Tariq Shamim, JJ, in hisarguments made reference of C.M.As No.803, 855, 856, 857 and

Const. Petition No.127 of 2012 26858 all of 2013, filed in the form of concise reply and also gotrecorded their respective dates of appointments as additionaljudge/permanent judge of the High Court, date ofretirement/resignation as judge of the High Court, date ofsuperannuation and the actual period of their respective length ofservice as judge of the High Court. He candidly stated before usthat all the five honourable retired judges represented by him, arethose, who, for one or the other reason, have not rendered actualservice as a High Court Judge for five years or more and thus forthe purpose of pension, they have availed the benefit of judgmentunder challenge.18. As first limb of his arguments, Mr. Amir Alam Khanchallenged the maintainability of this petition on the ground thatadjudication made by a three member Bench of this Court inexercise of its appellate jurisdiction under Article 185(3) of theConstitution, has attained finality in all respect, rather it has beenimplemented by the concerned government functionaries in its letterand spirit more than four years ago. Thus, on any legal premisethese proceedings cannot be subjected to interference, if consideredto be proceedings under Article 184(3) of the Constitution, whichconfers only limited jurisdiction to this Court relating to the issuesinvolving question of public importance and for the enforcement offundamental rights guaranteed under the Constitution. Hereiterated and added that the judgment under challenge is staredecisis, thus, final in all respect, and not open for reconsiderationin any manner, therefore, these proceedings are not maintainablein the present form. Discussing the fallout of judgment underchallange, he also made reference of Article 203C(9) of theConstitution to show that not only retired judges of the High Court

Const. Petition No.127 of 2012 27having less than five years actual service to their credit havebecome entitled for pensionary benefits, but the Chief Justice andother honourable retired judges of the Federal Shariat Court havealso become eligible and entitled for pensionary benefits despitebeing contract employees for a fixed term of three years. Hisfurther submission was that since a pragmatic and liberalapproach has been followed by the Court in the judgment underchallenge, its spirit may not be negated only on technical groundsor the fact that while interpreting the relevant provisions of theConstitution and President’s Orders, another view of the matterprejudicial to the interest of the retired judges of the High Court,was also possible. Mr. Amir Alam Khan, when confronted with thequestion that in case judgment under challenge is found to be perincuriam then what will be its legal position, candidly stated thatin that eventuality it will be a judgment liable to be ignored for allintent and purposes, thus, the ground urged by him forchallenging the maintainability of these proceedings will not be anobstacle for the Court from adjudicating the case on merits.19. Learned ASC also made reference to paragraph 178 of thejudgment in the case of Sindh High Court Bar Association (supra)in support of his arguments that the judgment under challengehas been already protected by application of doctrine of de factoexercise of jurisdiction, and as such judgment has been passed bya 14 members Bench of the apex Court, therefore, such protectioncannot be taken away by a five member Bench for denying itsbenefit to the retired judges of the High Court. Dilating upon themoral side of these proceedings, learned ASC also argued that allthe honourable retired judges of the High Court, irrespective oftheir length of service, are highly respected segment of society, who

Const. Petition No.127 of 2012 28deserve extra compassionate consideration in the matter of grantof pension and other benefits, therefore, once a judgment of thisCourt has remained in the field for a period over four years andfully acted upon, it shall not be withdrawn so as to take away allits benefits retrospectively, being past and closed transaction.Advancing his further arguments with reference to the case ofFazal-e-Miran Chohan, J., learned ASC pointed out that after hiselevation to the Bench as Additional Judge of the High Court w.e.f.1.12.2004 and confirmation vide notification dated 30.11.2005, heresigned from the service under very special circumstances on11.10.2009, though otherwise his date of superannuation was25.12.2010. Leaving apart these facts, which need sympatheticconsideration for extending him the pensionary benefits, in thismanner he has actually served as Judge of the High Court for aperiod of 04-years, 10-months and 09-days. Thus, upon readingpara 29 of President’s Order No.3 of 1997, together with serviceregulation No.423 of the Civil Service Regulations (in short “CSR”),providing for automatic relaxation/concession of six months incase of short service of a civil servant, he is otherwise also entitledfor pensionary benefits, independent to the ratio of judgmentunder challenge. In this context, he also placed reliance upon thecases Secretary Finance Division, Islamabad v. MuhammadZaman, Ex-Inspector, I.B., Islamabad (2009 SCMR 769) andMuhammad Aslam Khan v. Agricultural Development Bank ofPakistan (2010 SCMR 522). In the first case of Secretary FinanceDivision (supra), with reference to regulation No.423 of CSR, ofwhich benefit was claimed by the legal heirs of a deceasedgovernment employee/pensioner, it was held that regulationNo.423 of CSR is without any qualification and is not restricted to

Const. Petition No.127 of 2012 29pensionary benefit of a widow. Of course, regulation No.423(2)empowers the competent authority to condone the deficiency ofmore than 6 months but less than one year where an officer hasdied while in service, or has retired under circumstances beyondhis control. In this context, the case of Postmaster-General EasternCircle (E.P.) Dacca and another v. Muhammad Hashim (PLD 1978SC 61) was also refered wherein it was held that if the Rules werecapable of bearing a reasonable interpretation favourable to theemployee then that interpretation should be preferred. In thesecond case of Muhammad Aslam Khan (supra), again the scope ofregulation No.423 of CSR was discussed with reference to the factsof the case, where a retired government servant, who had servedfor 31 years, 11 months and 14 days and was short of 17 daystowards completion of 32 years, was claiming pensionary benefitsfor 32 years. The Court held that regulation No.423(1) of CSRunder Chapter XVII with the heading "Condonation ofInterruptions and Deficiencies" would undoubtedly suggest thatthe shortage of period not exceeding six months becomeautomatically condoned, rather shortage of period exceeding sixmonths was also condonable by competent authority, providedthe conditions under regulation No.423(2) of CSR were fulfilled.20. At the conclusion of his arguments he also pointed outthe incident of plane crash, which took the life of honourableJustice Muhammad Nawaz Bhatti in the line of his duty on10.7.2006, who otherwise would have reached the date of hissuperannuation on 31.8.2009, after rendering service of roughly04-years and 09-months. In this context, he stressed for a mercifuland lenient view in the matter for the widow and orphans of thedeceased judge.

Const. Petition No.127 of 2012 3021. Mr. Muhammad Akram Sheikh, who is representingbefore us M/s Saeed-ur-Rehman Farrukh and Khan Riaz-ud-DinAhmed, JJ, at the commencement of his arguments madereference of C.M.A No.871 and 872 of 2013 to give relevant dates oftheir appointment as Additional Judges/permanent judges of theHigh Court and date of their retirement on 31.7.1998 and31.12.1997 respectively. According to his calculations, the actualperiod of service rendered by them, including the period of gap intheir service, both of them have served as a Judge of the HighCourt for a period of more than five years and thus, their cases arenot covered by the ratio of judgment under challenge and they are,therefore, not its beneficiary. Further, according to learned ASC,issuance of notice of these proceedings to them is uncalled for andliable to be withdrawn/set aside. However, when we have lookedinto some relevant factual aspects of the case in the context oftheir actual period of service as judge of the High Court, we havenoticed that they have served as such for a period of about 03-years, 06-months and 12-days; and 04-years, 02-months and 28-days respectively, if the period when they remained out of serviceas Judge of the High Court is excluded from consideration in linewith the definition of actual period of service given underparagraph-2 of President’s Order No. 3 of 1997, which provides foronly computing the actual service for eligibility and payment ofpensionary benefits. Learned ASC making reference to FifthSchedule to Article 205 of the Constitution, also attempted to showthe element of discrimination in the matter of entitlement ofpensionary benefits for a retired judge of the High Court and aretired judge of the Supreme Court, as separately provided in thesaid Schedule. In this regard, his submission was that no

Const. Petition No.127 of 2012 31minimum period of service as a judge of the Supreme Court isprescribed in the first part of the Schedule relating to right topension while the condition of minimum five years service forentitlement of pensionary benefits has been discriminately madeapplicable for the retired judges of the High Court. Learned ASC,during his arguments, also made reference to the case of I.ASharwani (supra), to lay stress to his arguments upon the right ofpension to a retired civil servant.22. In addition to the above, in his written submissions,learned ASC further reiterated as under:-a. Notice issued to the retired judges represented by him isnot only uncharitable from its language, but also basedon wrong premise.b. Pensionary benefits paid to the retired judges on the basisof judgment under challenge is past and closedtransaction and stare decisis, thus, no order for itsrecovery can be made even if the said judgment isreviewed and put at naught.c. Though the principle of stare decisis has very limitedapplication to the proceedings before the Supreme Court,being apex Court, but the rights and obligationsdetermined under any proceedings shall be considered asa past and closed transaction, which has created vestedrights under the judicial pronouncement in favour ofsome party.d. Suo moto exercise of jurisdiction in the presentproceedings in any form are not maintainable under thelaw as held in the cases of Asif Saeed v. Registrar Lahore(PLD 1999 Lahore 350), Nusrat Elahi v. Registrar, Lahore

Const. Petition No.127 of 2012 32High Court (PLJ 1991 Lahore 471), Abdul RehmanAntulay v. Union of India (AIR 1984 SC 1358). In case thepresent proceedings are being entertained under Article184(3) of the Constitution, then no violation or breach ofany fundamental right of any citizen of this Country hasbeen urged, which is sine qua non for exercise of suchjurisdiction.e. Principle of res judicata is squarely applicable after lapseof five years of pronouncement of judgment in the caseunder consideration, as held in the cases of Abdul Jalil v.State of U.P. (AIR 1984 SC 882), Virundhunagar S.R.Mills v. Madras Govt. (AIR 1968SC 1196) andAmalgamated Coalfields v. Janapada Sabah (AIR 1964 SC1013).f. The honourable retired judges of the High Court receivedthe pensionary benefits on the basis of judgment underchallenge in good faith and the bonafide orders of theapex Court, therefore, question of its refund does notarise, even if the said judgment is reviewed or revisited.23. At the conclusion of his arguments, with reference to theplea of stare decisis, Mr. Sheikh also read some passage from thebook titled as “Fundamental Law of Pakistan” authored by Mr. A.K.Brohi, a prominent jurist of this country. In the context of past andclosed transaction, he also placed reliance upon the cases of MissAsma Jilani v. Government of the Punjab (PLD 1972 SC 139),Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504),Jamat-i-Islami Pakistan versus Federation of Pakistan (PLD 2000SC 111).

Const. Petition No.127 of 2012 3324. In the case of Miss Asma Jillani (supra), dealing with acriminal appeal wherein question arose, whether the High Courthad jurisdiction under Article 98 of the Constitution of Pakistan(1962) to enquire into the validity of detention under the MartialLaw Regulation No.78 of 1971 in view of the bar created by theprovisions of the Jurisdiction of Courts (Removal of Doubts) Order,1969 and the doctrine of law enunciated in the case of State versusDosso (PLD 1958 S.C. (Pak.) 533), the successive manoeuvrings forusurpation of power under the Pseudonym of Martial Law werejustified or valid, the Court while discussing various principles ofinterpretation of statutes held that: no duty is cast on the Courtsto enter upon purely academic exercise or to pronounce uponhypothetical questions: Courts’ judicial function; is to adjudicateupon real and present controversy formally raised before it by thelitigant; Court would not suo moto raise a question or decide it;doctrine of stare decisis is not inflexible in its application; lawcannot stand still nor can the Courts and Judges be made mereslaves of precedent. In this case finally upholding the doctrine ofnecessity it was further observed that the transactions which arepast and closed may not be disturbed as no useful purpose can beserved by reopening them.25. In the case of Sh. Liaqat Hussain (supra) reviewing thejurisdiction of the Apex Court under Article 184 (3) of theConstitution, it was held that law if validly enacted cannot bestruck down on the ground of malafide but the same can be struckdown on the ground that it was violative of Constitutionalprovision. Further with reference to Article 6 of the Constitution,application of doctrine of necessity was rejected. Moreover, theconcept of public importance within the meaning of Article 184 (3)

Const. Petition No.127 of 2012 34of the Constitution was discussed in detail and it was held thatunder Article 9 of the Constitution right of access to justice to all isa fundamental right guaranteed to every citizen of the country.However, in the end this petition and other connected petitionsunder Article 184(3) of the Constitution, challenging the PakistanArmed Forces (Acting in Aid of the Civil Power) Ordinance 1998promulgated on 20 th November, 1998, thereby empowering theMilitary Courts to try civilians for civil offences, were dismissed inthe terms as detailed in the short order dated 17.2.1999.26. In the case of Jamat-i-Islami Pakistan (supra), it was heldthat a statute must be intelligibly expressed and reasonablydefinite and certain and it is the duty of the Court to find out thetrue meaning of a statute while interpreting the same. In the samecontext the underlining principle of doctrine of “ejusdem generis”was also enumerated. Finally it was held that where the wordsused in a statute are ambiguous and admit of two constructionsand one of them leads to a manifest absurdity or to a clear risk ofinjustice and the other leads to no such consequence, the secondinterpretation must be adopted. It may also be added here that theother cases referred to by the learned Sr. ASC in paragraph “d” and“e” relating to the subject of maintainability and res judicata arepremised on entirely different facts and circumstances, and thushave no relevancy or applicability to the present proceedings.27. Mr. Gulzarin Kiyani, learned Sr. ASC, who is representingMr. Muhammad Muzammal Khan, J., another honourable retiredjudge of the High Court and beneficiary of the judgment underchallenge, in his arguments firstly made reference to C.M.ANo.801/2013, and gave relevant dates of appointment of JusticeJustice Muhammad Muzammal Khan as additional Judge and

Const. Petition No.127 of 2012 35permanent Judge of the High Court and the date of his retirement,to show that admittedly before retirement he rendered actualservice as a judge of the High Court for a period of 04-years, 05-months and 27-days. In his further arguments, learned Sr. ASCfirmly disagreed with the submissions of many other learned ASCs,who earlier to him have argued the case, on the point ofmaintainability of this petition as well as about the interpretationof paragraphs-2 and 3 of Fifth Schedule to Article 205 of theConstitution. He contended that this Court, being the apex Court,has wide jurisdiction to exercise suo moto review powers and theprinciple of stare decisis is not application in this regard. To fortifyhis submissions in this regard, he placed reliance upon the case ofAbdul Ghaffar-Abdul Rehman v. Asghar Ali (PLD 1998 SC 363).28. Again, making reference to the language of paragraph-2 ofFifth Schedule to Article 205 of the Constitution, he stronglycontended that there is only one category of judges of the HighCourt i.e. “Every judge” mentioned in this paragraph, either read itseparately and independently or together with paragraph-3, whoseright to pension are to be determined by the President from time totime and until so determined, they are entitled to the privileges,allowances and rights, to which immediately before itscommencing day, the judges of the High Court were entitled. Forthis purpose, he also made reference to High Court Judges OrderNo.7 of 1937, President’s Order No.9 of 1970 and President’s OrderNo.3 of 1997, to show that even before partition of the subcontinent,the rights, qualifications and entitlement of the judgesof the High Court for the purpose of pension were being regularlydetermined, but at no point in time, any judge of the High Court

Const. Petition No.127 of 2012 36who had served as such for a period of less than five years, wasever found eligible or entitled under any dispensation for paymentof pension. It is only for this reason that right from the prepartitiondays, till the decision by way of judgment underchallenge, no retired judge of the High Court was found entitled forpayment of pensionary benefits if he has served in the High Courtfor any period less than five years. He added that it looks strangeand ridiculous that in case such right to pension was everavailable to the retired judge of the High Court at any time duringthe last sixty years, still all of them, who were jurists in their ownrights and adjudicators of law at the highest level, could not dareto interpret such Constitutional provisions or President’s Ordersissued in furtherance thereof in their favour, so as to avail thebenefit of pension upon their retirement before completing actualservice of less than five years. He also argued that paragraphs-2and 3 of the Fifth Schedule to Article 205 of the Constitution are tobe read together and in conjunction with the President’s Ordersissued under the said constitutional mandate from time to timeand this scheme of law makes it clear beyond any shadow of doubtthat there is no entitlement to pension for a judge of the HighCourt, who has served as such for actual period of less than fiveyears.29. Reverting to the case of his own client, learned seniorASC read before us paragraph 14, 15, 16 and 29 of the President’sOrder No.3 of 1997, the definition clause (b) and (g) from paragraph-2, relating to ‘actual service’ and ‘service for pension’ respectively,relevant for determination of pensionary rights of a High CourtJudge, read with regulation No.423(b) of CSR, which in the firstplace provides automatic dispensation of deficiency upto six months

Const. Petition No.127 of 2012 37and further visualizes, subject to fulfillment of other conditions, thediscretion for dispensation and relaxation of such period upto oneyear by the President. According to Mr. Kiyani, in such eventuality,by pressing into service these constitutional and sub-constitutionalprovisions of the law, having rendered service of four years, fivemonths and twenty-seven days, his client has become entitled forthe pensionary benefits, more so, as benefit of addition of another30 days service period to his credit in terms of definition clause (g)of President’s Order No. 3 of 1997 cannot be denied to him. He alsocited the two earlier referred cases of Secretary Finance Division v.Muhammad Zaman and Muhammad Aslam Khan v. ADBP.30. At the conclusion of his arguments, learned Sr. ASCsubmitted that in case the arguments advanced by him are notsustained and the judgment under challenge is reviewed/revisited,still the application of such judgment should be madeprospectively, so as to save the benefits, which his client hasalready availed in the form of pension etc on the basis of judgmentunder challenge.31. Raja Muhammad Ibrahim Satti, learned Sr. ASC,representing in these proceedings one honourable retired judge ofthe High Court, Mr. Mansoor Ahmed, J., also made reference ofC.M.A No.873/2013, which is a reply on his behalf. He providedrelevant details about the date of his appointment as additionaljudge of the High Court and the date of his retirement, whichshows his actual period of service as 03-years, 02-months and 04-days. Learned ASC in his arguments strongly challenged themaintainability of this review petition on account of the fact that ithas emanated from a note of the Registrar of the Supreme Court in

Const. Petition No.127 of 2012 38this regard, who has no judicial or administrative jurisdiction orauthority at all to undertake such critical examination of an earlierjudgment of the Supreme Court, which has become final, followingthe doctrine of stare decisis, and become past and closedtransaction. He, however, in the same breath also candidlyconceded about the unbridled jurisdiction of this Court to correctany legal error and submitted that indeed where there is a wrongthere is a remedy is a well recognized principle of jurisprudence, soalso the fact that when superstructure is built on wrong legalfoundation, then upon its removal in any form, suchsuperstructure is bound to collapse. The learned counsel furtherplaced on record written formulations of his argument, which readas under:-“1. Whether the Registrar of this Court as defined in Order 1Rule 2(1) and has been assigned certain powers andfunctions under Rule 1 of Order III and also Under OrderV Rule 1, could in any way authorized or competent tomonitor, supervise, scrutinize or having a watch over theJudicial Function of the Court and particularly tocomment/point out legal flaws or defects in the judgmentsfinally passed by the Court or any Bench of the Court.2. Whether the Registrar who is Executive head of the Officehas any role to get reopen the Final judgments of thisCourt which have attained finality and if this course isadopted it will disturb whole the Scheme of Constitution.3. Whether even the note of Registrar is not misleading asapparently he based the note on total misconception asmentioned in para 5 of the Note that the judgment (PLD2008 SC 522) is based on PO.NO.8 of 2007 and thatPO.No.8 of 2007 has been declared void ab-initio in PLD2009 SC 879, in fact the judgment is otherwise and itmainly based on interpretations of Article 25, 205, 207(3)Schedule V of the Constitution read with PO 2 of 1993, PO3 of 1997 and reference has been made to PO 8/2007 injudgment which in fact removed the anomaly and Retiredjudges were entitled to pension even independent of P.ONo.8 of 2007 and the said judgment is valid for otherreasons as mentioned in judgment.

Const. Petition No.127 of 2012 394. What prompted the Registrar to put up a note on judicialside after lapse of almost four years of the passing ofjudgment which had attained finality.5. Whether it was not proper to place the matter before anappropriate Bench to proceed with the matter if at all itwas necessary whereas the Hon’ble Chief Justice hadhimself decided the fate of note that prima facie the notemake out case of examination and accordingly issuedNotices straightaway to the Retired Judges.6. Whether when a judgment is passed in regular jurisdictionunder Article 185 the same can be reopened by recourseto other jurisdictions under Article 184, 186 of theConstitution, Human Right Forum or even Suo Moto.7. Whether the judgment is also not sustainable onadditional ground qua discrimination amongst Judges ofSuperior Courts.8. Whether the retired Judge who never applied or party tothe judgment can suffer for the Act of Court throughwhich benefit is extended to them and at any rate recoverycould be made for no fault of them.9. Whether in any case the re-visitation of the judgmentwould be operative retrospectively or prospectively.10. What should be effects and consequences and way-outregarding inaction of President of Pakistan for notdetermining the pension according to the scheduleregarding the Judges of the High Court who had notcompleted five years as permanent service though he wasempowered under the Constitution to do so.”32. In addition to the above, he contended that in casepresent proceedings are deemed to be in exercise of powers ofreview conferred upon this Court under Article 188 of theConstitution, read with Order XXVI of the Supreme Court Rules,1980, in that eventuality the guiding principle for determining theparameters of review as laid down by this Court in the case ofAbdul Ghaffar - Abdul Rehman (supra) are to be strongly adheredto. Reiterating his stance on the point of maintainability of thispetition, he stated that in case the note of the Registrar is takenout of consideration and upon perusal of the judgment underchallenge this Court feels it appropriate to proceed further with

Const. Petition No.127 of 2012 42or taken oath under the Oath of Office of (Judges)Order, 2000 (I of 2000), and ceased to hold theoffice of a Judge shall, for the purposes ofpensionary benefits only, be deemed to havecontinued to hold office under the Constitution tilltheir date of superannuation.”35. Mrs. Asma Jehangir, representing Justice TariqMehmood, honourable retired judge of the High Court and thewidow of late Justice Khiyar Khan, former Judge of the High Court,in her arguments firstly furnished relevant details about theircareer as a judge of the High Court, which reveal that the formerserved as a Judge of the High Court from 06.9.2000 to 6.4.2002i.e. 01-year, 07-months and 04-days, while the late husband oflatter, who was elevated as additional judge of the High Court on16.9.1990 and reached the age of superannuation on 18.11.1994,had served for 04-years and 03-days. Arguing the case, she firmlyquestioned the maintainability of the petition in the present formas according to her, note of the Registrar cannot be taken as suomoto review petition against the judgment under challenge beforethis Court. Rather, such conduct of the Registrar is to bedeprecated. She further argued that even if the discussion andobservations contained in the judgment under challange, withreference to Presidents Order No.8 of 2007, are totally discarded,still the said judgment on the basis of other sound reasons issustainable in law and not open to interference under the limitedscope of review. She further argued that in paragraph-2 of the FifthSchedule to Article 205 of the Constitution word “every judge” alsoincludes additional judges for the purpose of pensionary benefits.Lastly, supporting the judgment under challenge on the principleof stare decisis, she placed reliance upon the judgment in the case

Const. Petition No.127 of 2012 43of Bengal Immunity Co. v. The State of Bihar (AIR 1955 SC 661),which, inter alia, lays down that:-“This Court has never committed itself to any rule orpolicy that it will not “bow to the lessons of experience and theforce of better reasoning” by overruling a mistaken precedent…….This is especially the case when the meaning of the Constitutionis at issue and a mistaken construction is one which cannot becorrected by legislative action. To give blind adherence to a rule orpolicy that no decision of this Court is to be overruled would beitself to overrule many decisions of the Court which do not acceptthat view.But the rule of ‘stare decisis’ embodies a wise policybecause it is often more important that a rule of law be settledthan that it be settled right. This is especially so where as here,congress is not without regulatory power…… The question then isnot whether an earlier decision should ever be overruled, butwhether a particular decision ought to be. And before overruling aprecedent in any case it is the duty of the court to make certainthat more harm will not be done in rejecting than in retaining arule of even dubious validity.”……………………………………….It would be seen that in this case the Court acted uponthe limitations which they have laid down in the course of theirdecisions, that reconsideration and overruling of a prior decisionis to be confined to cases where the prior decision ‘is manifestlywrong and’ its maintenance is productive of great public mischief.The second is the case in –‘G. Nkambule v. The King’, 1950 AC379 (Z37), where the Privy Council declined to follow its priordecision in – ‘Tuumahole Bereng v. R.’, 1949 AC 253 (X38). In thiscase, the Privy Council, while it reaffirmed the proposition that aprior decision upon a given set of facts ought not to be reopenedwithout the greatest hesitation, explained why they, in fact,differed from the previous one in the following passage:“From a perusal of the judgment in ‘Tumahole’s case’,(Z38), it is apparent that the history of the adoption andpromulgation of the various statutes and proclamations dealingwith the effect of the evidence of accomplices in South Africa wasonly partially put before the Board, and much material which hasnow been ascertained was not presented to their Lordships onthat occasion. The present case, therefore, is one in which freshfacts have been adduced which were not under considerationwhen Tumahole’s case (Z38) was decided, and accordingly it isone in which, in their Lordships’ view, they are justified inreconsidering the foundations on which that case wasdetermined”.

Const. Petition No.127 of 2012 44……… It will be noticed that the overruling of the priordecision in this case was based on the fact that important andrelevant material was not placed before the Judicial Committee inthe earlier case. These cases emphasis under what exceptionalcircumstances a prior decision or the highest and final court in acountry is treated as not binding on itself.”36. Mr. Sadiq Leghari, another honourable retired judge ofthe High Court, who appeared in person, invited our attention toC.M.A No.686/2013, which is his reply to this petition. He gaverelevant details of his appointment as a judge of the High Courtbefore having served the District judiciary in Sindh for a period ofover thirty years to show that his actual period of service as judgeof the High Court is 03-years, 10-months and 04-days. He madereference to the operative part of the judgment under challenge toshow that by this judgment, no unrestricted or open ended reliefhas been granted to the retired judges of the High Court, but onlyto those retired judges of the High Court, who have retired in termsof Article 195 of the Constitution. As per his formulations, para 33of the judgment under challenge excludes the additional judges ofthe High Court from availing its benefit. He, while makingreference to Article 188 of the Constitution, candidly stated thatvast powers of review are available with this Court, which areaimed to foster the cause of justice and to undo any injustice orirregularity, legal or factual. Mr. Leghari also made reference to thejudgment in the case of Muhammad Mubeen-us-Salam v.Federation of Pakistan (PLD 2006 SC 602) to fortify hissubmissions that benefit of judgment under challenge oncereceived by him and other retired judges of the High Court hascreated a vested right in their favour and now it is a past andclosed transaction, which can not be reopened; more over, the twoparts of Fifth Schedule to Article 205 of the Constitution, relating

Const. Petition No.127 of 2012 45to the Supreme Court Judges and the High Court Judges, arediscriminatory, thus, violative of Article 25 of the Constitution.37. Sardar Muhammad Aslam, learned ASC for M/s M.K.NKohli and Iftikhar Ahmed Cheema, two honourable retired judgesof the High Court; and also for Mst. Begum Nusrat, widow of lateJustice Muzaffar Ali Gondal, in his submissions made reference toC.M.As No.875/2013 and 1404/2013, which are their replies tothese proceedings and also civil miscellaneous appealNo.176/2012, to show that retired Justice M.K.N Kohli, before hisresignation, had served superior judiciary as a judge of the HighCourt for 04-years, 08-months, and 28-days. Therefore, besidesthe implication of judgment under challenge, his case was alsoqualified for pension in terms of paragraph-29 of the PresidentsOrder No.3 of 1997, read with Service Regulation No.423, and onthe principle of rounding up of length of service. As regards thecase of other retired judge, Justice Iftikhar Ahmed Cheema, hegave relevant dates of his joining of service as a Judge of the HighCourt and date of his retirement to show that after having servedthe District judiciary for over two/three decades, he also served thesuperior judiciary for 02-years, 07-months and 07-days, while latejustice Muzaffar Ali Gondal, who retired as judge of Peshawar HighCourt on 06.5.1995, served as judge of the High Court for 04-yearsand 05-months. He conceded that as per the position as it standstoday, all retired judges represented by him are beneficiaries ofjudgment under challenge, but for that, he adopted the argumentsof other senior ASCs, who have earlier argued the scope of Article205 read with Fifth Schedule to the Constitution regarding thepensionary rights of the judges of the High Court, who have retired

Const. Petition No.127 of 2012 46from their offices after having served for a period less than fiveyears.38. Mr. M. Afzal Siddiqui, learned ASC representing Mr.Najam-ul-Hassan Kazmi, honourable retired judge of the HighCourt, in his brief submissions made reference of CMANo.392/2013, filed in these proceedings and for the purpose ofdefending the pensionary right of his client, placed reliance uponthe judgment in the case of Justice Hasnat Ahmed Khan v.Federation of Pakistan/State (PLD 2011 SC 680), at page 734,paragraph-43, which reads as under:-“43. It is a matter of great satisfaction and encouragementfor all the right men, who believe in the constitutionalism andare of the affirmed commitment that in our beloved countrythere should not be any rule except one under theConstitution, that is why the Parliament had not grantedlegitimacy or validity to the actions of 3-11-2007. In view of thepast history and on plain reading of the constitutionalprovisions relating to the Armed Forces i.e. Articles 243, 244and 245, discussed hereinbefore it is abundantly clear thatChief of Army Staff, who has been appointed by the Presidentin consultation with the Prime Minister has no authority tohold the Constitution in abeyance, therefore, condonation hasto be sought by adopting a legislative intervention, as per pastpractice, from the parliament. In absence of such validation,indemnification or legitimization, unconstitutional actionstaken by a dictator would continue to charge not only to theperson who had imposed Martial Law (Emergency) but also toothers as well who had accepted new order imposed in thecountry beneficially. There is no cavil with the proposition thatunconstitutional actions of General Pervez Musharraf (Retd.)taken on 3-11-2007 were declared unconstitutional on 31-7-2008 but still their consequences continue to exist because byno legislative intervention through Parliament, the legitimacy,indemnity or validity had been granted by the Parliament. It isto be seen that at the time of such unconstitutional MartialLaw in the name of Emergency on 3-11-2007, the Parliament(National Assembly + Senate) was duly functioning until 15-11-2007 when the National Assembly completed its tenure but nolegitimacy, validity or indemnity was obtained from the said

Const. Petition No.127 of 2012 47parliament. However, after dissolution of National Assembly,elections were held on 18-2-2008 and new National Assemblycommenced its functions from 3rd week of March, 2008onward. Meanwhile, Eighteenth and Nineteenth ConstitutionalAmendments were made by the parliament in pursuancewhereof legislative actions of the Eighth ConstitutionalAmendment and Seventeenth Constitutional Amendments werealso considered and all those legislative instruments, whichfound to be contrary to the Constitution, were weeded out ofthe Constitution. Interestingly the question of granting validity,indemnity and legitimacy in respect of SeventeenthConstitutional Amendment was also thoroughly examined andthe Parliament unanimously indemnified, legitimized andvalidated the oath made by the Judges, under the PCO andOath Order, 2000 by inserting sub Article 3 of the Article270AA, which reads as under:--(a)(b)"(3) Notwithstanding anything contained in theConstitution or clause (1), or judgment of any courtincluding the Supreme Court or a High Court, -Judges of the Supreme Court, High Courts and FederalShariat Court who were holding the office of a Judge orwere appointed as such, and had taken oath under theOath of Office (Judges) Order, 2000 (1 of 2000), shall bedeemed to have continued to hold the office as a Judge orappointed as such, as the case may be, under theConstitution, and such continuance or appointment, shallhave effect accordingly.Judges of the Supreme Court, High Courts and FederalShariat Court who not having been given or taken oathunder the Oath of Office (Judges) Order, 2000, (I of2000), and ceased to hold the office of a Judge shall, forthe purposes of pensionary benefits only, be deemed tohave continued to hold office under the Constitution tilltheir date of superannuation."The above provision in fact has replaced Article 270C insertedby the Seventeenth Constitutional Amendment, legitimizing,validating and condoning the oath taken by the then Judgesunder the PCO and Oath Order, 2000. Inasmuch as pensionarybenefits were also extended to the Judges who had declined totake oath in pursuance of Emergency and PCO, 2000 read withOath Order, 2000. A perusal whereof clearly indicates that bylegislative intervention through Parliament, the Judges of theSupreme Court, High Courts and Federal Shariat Court whowere holding the office of a Judge or were appointed as such,and had taken oath under the Oath of Office (Judges) Order,2000 were deemed to have continued to hold the office as aJudge or appointed as such, as the case would be, under theConstitution, and such continuance or appointment, wouldhave effect accordingly. However, Judges of the SupremeCourt, High Courts and Federal Shariat Court who were not

Const. Petition No.127 of 2012 48given or taken oath under the Oath Order, 2000, and ceased tohold the office of a Judge were, for the purposes of pensionarybenefits only, were deemed to have continued to hold officeunder the Constitution till their date of superannuation.”He added that in view of this clear enunciation of law by a sixmember Bench of the apex Court, pensionary rights of Mr. Najamul-HassanKazmi as a retired judge of the High Court are fullysafeguarded like the case of honourable retired Justice Dr. GhousMuhammad from the High Court of Sindh, whose case is identicaland at par to his case.39. Mr. Abdul Aziz Kundi, a former judge of the PeshawarHigh Court, who appeared before us in person and also for Mst.Roshan Bibi, widow of late Justice Sher Bahadur Khan, a formerjudge of the Peshawar High Court, contended that everypermanent judge of the High Court is entitled for the pensionarybenefits under paragraph-2 of Fifth Schedule to Article 205 of theConstitution, subject to determination by the President and untilthen, as per earlier arrangements. He also argued that when hewas elevated to the Bench as a judge of the Peshawar High Court,the judgment under challenge was applicable and followed with fullforce in favour of all the retired judges of the High Courts for grantof pensionary benefits irrespective of their length of service,therefore, he had legitimate expectancy for grant of all thepensionary benefits upon his retirement, which had taken place on31.10.2010, after he having served as a Judge of the PeshawarHigh Court for a period of 01-year, 03-months and 24-days. Healso outlined the difficulties faced by him upon elevation asadditional judge of the High Court as a result whereof, he had toclose down his office and wind up his flourishing practice. He,therefore, while adopting the arguments of other learned senior

Const. Petition No.127 of 2012 49ASCs, urged that in his case retrospective application of thejudgment of this Court, in case it decides to review the judgmentunder challenge, shall not be made as his case is distinguishableon the principle of legitimate expectancy. Arguing the case of Mst.Roshan Bibi, widow of late Justice Sher Bahadur Khan, hementioned that the deceased was appointed as additional judge ofthe High Court on 7.4.1967 and he retired as confirmed Judge ofthe High Court on 1.7.1970, after having served for 03-years, 08-months and 14-days, and thereafter he passed away on30.12.1970, but in view of the ratio of the judgment underchallenge, his widow has been found entitled for all the pensionarybenefits in terms of paragraph-4 of Fifth Schedule to Article 205 ofthe Constitution.40. Mr. Mehmood A. Sheikh, learned ASC on behalf of JusticeMuhammad Aslam Arain, honourable retired judge of the HighCourt, in his arguments made reference of C.M.A No.1829 of 2013.He also gave relevant dates to show that before his retirement asJudge of the High Court on 11.5.1995, retired Justice MuhammadAslam Arain had served as such for 04-years and 06-months,thus, apart from the implication of judgment under challenge, he isentitled for pensionary benefits in terms of paragraph-29 of thePresident’s Order No.3/1997, read with Service Regulation No.423,which provides for automatic rounding up and relaxation of suchshort period of service upto six months to make it five years ofservice for entitlement of pensionary benefits.41. Mr. Salim Khan, another honourable retired judge of theHigh Court, who appeared in person to argue his case, madereference to C.M.A No.1274/2013, filed by him and also gave

Const. Petition No.127 of 2012 50relevant dates of his joining as Additional Judge of the High Courtand date of his retirement as 31.1.2008, to show that he, beforehis retirement, had served as judge of the High Court for a periodof 03-years and thus entitled for the benefit of judgment underchallenge on the basis of arguments advanced in this regard byother senior ASCs, which he also adopts.42. Mr. Hamid Farooq Khan, honourable retired judge of theHigh Court, who also appeared in person, gave relevant dates ofhis joining as Additional Judge/permanent judge of the High Courtand date of his resignation/retirement to show that he actuallyserved as judge of the High Court for a period of 03-years and 07-months before his resignation under compelling circumstances,otherwise his date of superannuation was upto 15.10.2020. Hepointed out that as a result of unforeseen circumstances resultingin his resignation/retirement, now he is barred under Article 207of the Constitution from practicing in the Peshawar High Court. Inthe end, adopting the arguments of other senior ASCs, he placedreliance upon the case of Sindh High Court Bar Association(supra). It will be worthwhile to mention here that during theproceedings in the above cited case before a fourteen memberBench of the apex Court, almost all the judgments/case law citedin the present proceedings, was discussed at length in the mannerthat eventually, as detailed therein, all illegal actions of a dictatorGeneral Pervez Musharraf so also the earlier judgment of the Courtin Tikka Iqbal Muhammad Khan case, were struck down/set aside.Not only this, but a review petition against such judgment tiltedJustice Khurshid Anwar Bhinder and others v. Federation ofPakistan (PLD 2010 SC 483), heard by equal number of judges,

Const. Petition No.127 of 2012 51was also dismissed with the observation that the Supreme Courthas unfettered powers under Article 187 and 188 of theConstitution, read with Order XXVI of the Supreme Court Rules, todo ultimate justice for which earlier review petitions were verymuch maintainable.43. Mr. Muhammad Munir Peracha, learned ASC, who isappearing in this case on behalf of M/s Sheikh Abdul Rashid,Chaudhry Mushtaq Ahmed Khan, Chaudhry Abdul Mannan andMunib Ahmed Khan, JJ, honourable retired judges of the HighCourt, at the commencement of his arguments made reference toC.M.As No.724, 836 and 835 of 2013, filed on behalf of thesehonourable retired judges of the High Court, containing theirrespective dates of appointment as additional judges/permanentjudges and of their retirement/date on which they ceased to holdthe office as High Court Judges. He stated that insofar as Mr.Justice Munir Ahmed Khan is concerned, he has not filed any CMAin reply to these proceedings. From the submissions made beforeus, we have noted that Sheikh Abdul Rashid, before his retirementon 31.5.2006, had served as a High Court Judge for 02-years, 08-months and 28-days; Chaudhry Mushtaq Ahmed Khan, who wasaffectee of the fallout of Al-Jehad Trust v. Federation of Pakistan(PLD 1996 SC 324) case, ceased to remain a judge of the HighCourt w.e.f 30.9.1996, but by that time, he had served thejudiciary for 04-years, 01-month and 04-days; Chaudhry AbdulMannan, who never remained permanent judge of the High Court,had served as High Court Judge for a period of 03-years, 02-months and 15-days; before his resignation and its acceptance bythe President on 19.10.2009; while Mr. Munib Ahmed Khan had

Const. Petition No.127 of 2012 52served as a High Court Judge for 03-years, 11-months and 25-days. Learned ASC, making reference to Article 205 and FifthSchedule to the Constitution qua the judgment under challenge,submitted that it is a judgment in rem through which all thehonourable retired judges, who have rendered less than five yearsservice as a High Court Judge, are entitled to avail its benefit,thus, no exception could be taken to the claim of respondentsrepresented by him. In the same context, he also made reference ofArticle 25 of the Constitution and the case of Hameed Akhtar Niaziv. Secretary, Establishment Division, Government of Pakistan(1996 SCMR 1185), which in its terms prohibit discriminationamongst the persons placed in the similar position and entitleothers the benefit of earlier judgment, when applicable to theircase. He further submitted that judgment under challenge is onewhich is not fit to be reviewed by this Bench for any technicalreasons and if this Court still comes to a contrary conclusion andforms its view about the maintainability of these proceedings in thepositive, then it should be made applicable only prospectively andnot retrospectively to save the benefits which have been alreadyavailed by the honourable retired judges of the High Court in abonafide manner. In order to gain support to the case of ChaudhryAbdul Mannan, J., who never remained permanent judge of theHigh Court, he also made reference to the definition of ‘Judge’,under Article 260 of the Constitution, which also includes anadditional judge. He summed up his submissions on the note thatall the honourable retired judges, who have rendered less than fiveyears actual service as a High Court Judge, being respectable classof the society, having held constitutional post, deserve a

Const. Petition No.127 of 2012 53sympathetic and lenient view in the matter, which may not beprejudicial to their interest.44. Mr. Afnan Karim Kundi, learned ASC for honourableretired Justice Raza Ahmed Khan, before making his submissions,in order to give relevant dates of his appointment as additionaljudge, permanent judge and retirement of his client, madereference of C.M.A No.1419/2013, to show that he had actuallyserved as High Court judge for a period of 03-years, 05-monthsand 04-days, before his retirement on attaining the age ofsuperannuation on 05.3.1992. He contended that law relating topensionary benefits is now well developed and provides that suchbenefit to a retired government servant is his hard earned rightand no more a bounty of the State for certain individuals,therefore, an additional judge of the High Court is not entitled forany pensionary benefit, but only the permanent judges. He alsomade reference to the language of paragraph-2 of Fifth Schedule toArticle 205 of the Constitution and argued that opening words ofthis paragraph “every judge” are to be given widest meaning inorder to extend pensionary benefits to all the honourable retiredjudges of the High Court, irrespective of their length of service assuch. He added that for fair determination of quantum of pension,any reasonable and equitable formula can be drawn by thePresident on the basis of rationalization of pensionary benefits tothose honourable retired judges of the High Court, who haverendered less than five years service, as right now no such schemeis provided either in the President’s Order No.9 of 1970 orPresident’s Order No.3 of 1997.

Const. Petition No.127 of 2012 5445. Justice Muhammad Azam Khan, another honourableretired judge of the High Court, who appeared in person, madereference of C.M.A No.743/2013 to show that he was appointed asadditional judge of the High Court on 13.6.1998 and was made toretire under the PCO of 2000 w.e.f 26.1.2000, after rendering totalservice of 01-year, 07-months and 12-days, thus, he is entitled forthe benefit of Article 270AA(3)(b), which adequately protects hisright to pension as affectees of PCO of 2000, resulting in his unceremonialand unconstitutional removal from service as HighCourt Judge. He, however, conceded that even if he had not beenremoved under the said PCO, on attaining the age ofsuperannuation he would have retired on 17.3.2001 afterrendering total service of less than 03 years. He also madereference of C.M.A No.940/2008, to show that he was one of thecontesting party before the Supreme Court in the earlierproceedings wherein the judgment under challenge was passed. Inthe end, he stated that on other legal aspects of the matter, headopts the arguments advanced by senior ASC Mr. IftikharHussain Gillani.46. Mr. Abdul Rahim Bhatti, learned ASC, who isrepresenting Justice Abdul Ghani Sheikh, honourable retired judgeof the High Court, made reference of C.M.A No.854/2013, to showvarious relevant dates of appointment and retirement of Mr.Sheikh after rendering actual service of 03-years and 15-days inaggregate. He made reference to the cases reported as MuhammadMubeen-us-Salam (supra) and Muhammad Idrees v. AgriculturalDevelopment Bank of Pakistan (PLD 2007 SC 681) in support ofhis submission that even if the judgment under challenge is set

Const. Petition No.127 of 2012 55aside, then its applicability can only be made prospectively and notretrospectively. More so, when it is a past and closed transactionas the judgment under challenge has been fully implemented bythe official respondents.47. Mr. Farhat Nawaz Lodhi, learned ASC for retired JusticeAmjad Ali Sheikh, a honourable retired judge of the High Court,also gave relevant dates of his appointment and retirement to showthat at the time of his retirement on 22.6.1999, retired JusticeAmjad Ali Sheikh, has served as a judge of the High Court for aperiod of 02-years, 06-months and 10-days. He further adoptedthe arguments of Mr. Amir Alam Khan, learned ASC on thequestion of maintainability of these proceedings emanating fromthe note of the Registrar, being malicious.48. At this stage, with leave of the Court, M/s Gulzarin Kiyaniand Iftikhar Hussain Gillani, learned Sr. ASCs, made their furthersubmissions wherein Mr. Kiyani, dilating upon the powers ofreview vested with this Court, made reference to the judgment inthe case of Pir Bakhsh v. Chairman Allotment Committee (PLD1987 SC 145) and also briefly discussed the principles of resjudicata, stare decisis and prospective and retrospective applicationof various judgments announced by this Court to show that theseprinciples are not attracted in the present case, which is to beadjudicated upon its own merits, more particularly, when theseproceedings relate to public exchequer, thus, falling within thedomain of public interest litigation. He also contended that in acase where constitutional provisions are clear in language, nodoctrine of legitimate expectation can be applied in order tosupport or protect some wrong doing. For this purpose, he also

Const. Petition No.127 of 2012 56made reference to the High Court Judges Pension Order, 1937,President’s Order No.9/1970 and President’s Order No.03/1997, toshow that earlier to the adjudication vide judgment underchallenge, it was otherwise also a convention religiously followedby all the retired judges of the High Court having rendered lessthan five years service that no claim for pension for such shortperiod of service was to be made. In the end, to fortify hissubmissions, he cited following cases.a. Abdul Ghaffar-Abdul Rehman’s case (supra).b. State of West Bangal v. Corporation of Calcutta(1967 AIR SC 997)c. Bengal Immunity Co.’s case (supra)d. A.R. Antulay v. R.S. Nayak (AIR 1988 SC 1531.)In the case of State of West Bengal (supra), examining the effect ofArticle 141 of the Constitution of India, it was held by a ninemember Bench of the Indian Supreme Court that there is nothingin the Constitution which prevents Supreme Court from departingfrom its previous decision, if it is satisfied of its error and itsbaneful effect on general interests of public. In Constitutionalmatters which effect evolution of country’s polity, Supreme Courtmust more readily correct itself than in other branches of law asperpetuation of a mistake will be harmful to public interest, whilecontinuity and consistency are conductive to smooth evolution ofrule of law, hesitancy to set right deviation will retard its growth.To fortify this view, reference to the case of Bengal Immunity Co.(supra) was also made.In the case of A.R Antulay (supra), with reference to the facts of thecase, it was held that where the relevant statutory provisions werenot brought to the notice of the Supreme Court, which precluded it

Const. Petition No.127 of 2012 57to exercise power in a case, than it cannot be said that thejudgment was not per incuriam. In this context reference was alsomade to the case of State of West Bengal v. Anwar Ali (AIR 1952 SC75). In addition to it, the maxim “Actus Curiae Neminem Gravabit”(an act of the Court shall prejudice no man) was discussed and itwas held that this maxim is founded upon justice and good senseand affords a safe and certain guide for the administration of thelaw; this maxim is not a source of general power to reopen andrehear adjudications which have otherwise assumed finality, asthis maxim operates in a different and narrow area. It wasillustrated that if owing to the delay in what, the Court should,otherwise, have done earlier but did later, a party suffers owing toevents occurring in the interregnum, the Court has the power toremedy it.49. Mr. Iftikhar Hussain Gillani, in his further submissionsreiterated that the judgment under challenge cannot be termed asa judgment per incuriam, therefore, the benefits already drawn orclaimed by the honourable retired judges of the High Court,though they having rendered less than five years actual service,cannot be reclaimed from them.50. Khawaja Muhammad Haris, learned senior ASC, one ofthe amici curiae in this case, strongly supported themaintainability of these suo moto proceedings and contended thatit may be that these proceedings have emanated from the note ofthe Registrar of this Court, but for according legitimacy to theseproceedings it is the knowledge or notice taken by the Court, whichis material and not its source. Once this Court finds that some lawhas been wrongly enunciated, it is its prime duty to correct the lawirrespective of its fallout or effect upon its beneficiaries. He, while

Const. Petition No.127 of 2012 58criticizing the judgment under challenge, strongly contended thatthere are many legal mistakes floating on the surface of the recordwith reference to the judgment under challenge, thus, it can betermed nothing but a judgment per incuriam, and by applying theprinciple of stare decisis, it cannot be saved. He added that evenotherwise, the rule of stare decisis is not strictly applicable to theSupreme Court. Making reference to the High Court JudgesPension Order, 1937, President’s Order No.09/1970 andPresidents Order No.03/1997, he argued that no holistic or fairview was taken by this Court while passing its judgment underchallenge and in this regard even prevalent convention and usagesince the year 1937, having the force of law, were overlooked. Hefurther argued that Fifth Schedule to Article 205 of theConstitution is not a sub-constitutional legislation, but a part ofthe Constitution in terms of Article 205 of Constitution, thus, it isto be read as such and when it is read in the context of prevalentPresident’s Orders from time to time, it makes it very clear thatlength of service of High Court judges has always remained primeconsideration for grant of pensionary benefits to them or otherwise.He also dilated upon the language of paragraph-3 of the FifthSchedule to Article 205 of the Constitution to show its relevancyand importance in the matter of determining the entitlement forpension of judges of the High Court, who have served for less thanfive years as such. He conceded that of course, paragraph-3 of theFifth Schedule to Article 205 of the Constitution will not control itsparagraph-2, but at the same time when the whole Schedule isread in conjunction with the President’s Order inforce at therelevant time, there remains no ambiguity that all thosehonourable retired judges, who have rendered less than five years

Const. Petition No.127 of 2012 59actual service, excluding those cases which are found entitled forthe benefit of paragraph-29 (ibid), read with Service RegulationNo.423, are not entitled for any pensionary benefits. He againmade reference to various provisions of Judges Order/President’sOrders right from the year 1937 till date to show undisturbedconvention of over 75 years that no judge of the High Court, havingserved less than five years, ever objected to or raised the claim ofpensionary benefit for a lesser period of service by advancing theinterpretation of the relevant provisions of law in the manner asaccepted in the judgment under challenge. Re-agitating theapplicability of principle of per incuriam to the judgment underchallenge, learned ASC read before us its paragraphs No.9 toparagraph No.22, one by one, to highlight several patentdeficiencies in it, which brings it within the ambit of judgment perincuriam as per the law laid down by this Court in its variousjudgments. He further argued that since the very language ofjudgment under challenge gives its benefit to many others, whowere not even party to such proceedings before the apex Court,therefore, the judgment under challenge is a judgment in rem andnot a judgment in personam. In the same context, he also madereference to Article 203C, paragraph-9 of the Constitution, whichhas widened the applicability of the judgment under challenge tothe judges of the Federal Shariat Court also. Here he also madereference to the case of Mahmood Khan Achakzai v. Federation ofPakistan (PLD 1997 SC 426) to express his point of view on thescope and application of “De facto” doctrine. In this case “De facto”doctrine was discussed as under:-“The doctrine of de facto is a well recognized doctrineembedded in our jurisprudence. Under this doctrine bona fideacts in public interest performed by persons assuming authority,

Const. Petition No.127 of 2012 60which turns out to be illegal, are assumed to have beenperformed by a de jure authority/person and binding. Thisdoctrine is intended to avoid dislocation, instability and confusionwhile declaring a de facto authority illegal. In order to createstability, regularity and to prevent confusion in the conduct ofpublic business and in security of private rights the acts of theofficers de facto are not suffered to be questioned because of wantof legal authority except by some direct proceeding instituted forthe purpose by the State or someone claiming office de jure.The doctrine of de facto is based on considerations ofpolicy and public interest. For good order and peace of- societythe title of persons in apparent authority is to be respected andobeyed until their title is investigated in some regular modeprescribed by law.The acts of the officers de facto performed by them withinthe scope of their assumed official authority in the interest of thepublic or third persons and not for their own benefit are generallyas valid and binding as if they were the acts of officers de jure.This doctrine can be applied if the Parliament is declared to beillegally constituted and Enactment passed by such Parliament isdeclared unconstitutional. It is only in such situation that topreserve continuity, prevent disorder and protect private rights,this doctrine can be pressed in service.”51. In the context of paragraph-29 of the President’s OrderNo.03/1997, he supported the claim of those former judges of theHigh Court, who have though rendered less than five years service,but are entitled for the benefit of paragraph-29 read with ServiceRegulation No.423. In support of his other submissions,particularly on the point of per incuriam, he further cited followingcases.i) Sindh High Court Bar Association’s case (supra)ii) Gulshan Ara v. State (2010 SCMR 1162)iii)iv)Fasih-ud-Din Khan v. Government of Punjab(2010 SCMR 1778)Abdul Ghaffar-Abdul Rehman’s case (supra).v) Asad Ali v. Federation of Pakistan (PLD 1998 SC 161)vi)Federation of Pakistan v. Qamar Hussain Bhatti(PLD 2004 SC 77).

Const. Petition No.127 of 2012 61In the case of Gulshan Ara (supra) relating offence under theControl of Narcotic Substances Act, 1997, the principle of perincuriam was discussed with reference to its dictionary meaning inHalsbury’s Laws of England, Fourth Edition, volume 26 in paras557-558, and comments on the judgment per incuriam wererecorded as under:-"A decision is given per incuriam when the Court has acted inignorance of previous decision of its own or of a Court ofcoordinate jurisdiction which covered the case before it inwhich case it must decide which case to follow or when it hasacted in ignorance of House of a Lords' decision, in which caseit must follow that decision or when the decision is given inignorance of the terms of statute or rule has statutory force."In the case of Fasih-ud-Din Khan (supra), also, the meaning ofphrase per incuriam were dilated with reference to the case ofSindh High Court Bar Association (supra) and it was observed thatconnotation of per incuriam is “carelessness”. In the case of AsadAli (supra), the scope of Article 184(3) of the Constitution wasdiscussed in detail and, inter alia¸ it was held that ConstitutionalConvention once established has the same binding effect as aConstitutional provision, therefore, any breach of such Conventioncan be treated by the Court as a breach of the Constitution towhich the Convention relates. It was further held that Constitutionbeing the basic organic document, which is of a permanentcharacter and is not subject to frequent changes, such a basicdocument is necessarily a reflection of the aspirations of its people.The Constitution, therefore, is not an imprisonment of the past butit takes care of the present and is also alive to the future. Thecardinal rule of interpretation of a basic document likeConstitution is that it should be liberally construed and unless thecontext clearly implies a restricted construction, the words and

Const. Petition No.127 of 2012 62expressions used in the Constitution are to be given widestconnotation. Moreover, discussing the legal implication ofretrospectivity or prospectivity of a statute touching the vestedrights of the parties, it was observed that a new or amendingstatute touching the vested rights of the parties operatesprospectively unless the language of the legislation expresslyprovides for its retrospective operation. However, the presumptionagainst the retrospective operation of a statute is not applicable tostatutes dealing with the procedure as no vested right can beclaimed by any party in respect of a procedure. The only exceptionto the retrospective operation of a procedural law is that if bygiving it a retrospective operation, the vested right of a party isimpaired then to that extent it operates prospectively. The aboveprinciple applicable to a new or an amending statute, however,cannot be applied strictly to the law declared by the Courtsthrough interpretative process. The Courts, while interpreting alaw, do not legislate or create any new law or amend the existinglaw. By interpreting the law, the Courts only declare the truemeaning of the law which already existed. Therefore, to that extentthe law declared by the Court is applicable from the date the law isenacted.In the case of Federation of Pakistan (supra) dealing with the caseof civil servant qua the concept of judgments in “rem” and“personam”, reference to the definition of these phrases was madefrom Black's Law Dictionary Sixth Edition; the ratio of HameedAkhtar Niazi v. Secretary, Establishment Division (1996 SCMR1185) was also discussed with reference to the scope andapplicability of Article 25 of the Constitution and based on thesereasons/legal principles, benefit was also extended to those other

Const. Petition No.127 of 2012 63persons who were equally placed and found entitled for similarbenefit through an earlier pronouncement of the Court.52. Mr. Salman Akram Raja, the other amicus curiaeappointed by the Court, during his submissions read before ussecond part of Fifth Schedule to Article 205 of the Constitution,relating to High Court Judges and contended that indeed in termsof paragraph-2 every judge of the High Court is entitled forpensionary benefits, but subject to determination of such right bythe President, which is the basic requirement and only thereafterthe question of quantum of pensionary benefits could beconsidered/decided by the President for determination. Afterreading paragraph-2 and 3 of the Fifth Schedule to Article 205 ofthe Constitution word-by-word, he contended that the word“determination by the President” has two facets; one about the rightof every judge; and, the other about the quantum of pensionarybenefits of every judge. When in this background, the FifthSchedule relating to High Court Judges is read in line with thelanguage of either High Court Judges Order, 1937 or President’sOrder No.09/1970 or President’s Order No.03/1997, it clearlyshows that determination made by the President regardingpensionary benefit of the honourable retired judges of the HighCourt, who have served as such for less than five years, is zeropension, for which no further clarification or illustration is neededin case President’s Order is read harmoniously with the FifthSchedule. Making reference to the principle of rationality orproportionality in the matter of pensionary benefits, he furthercontended that this Court cannot sit over or regulate the powers ofthe President in this regard, therefore, no such observation or

Const. Petition No.127 of 2012 64directions can be issued to the President, who has alreadydetermined the right of the judges of the High Court, havingrendered less than five years service as “Zero”. He also madereference to the judgment in the case of Sindh High Court BarAssociation (supra) to show that the judgment under challenge ismainly based on the President’s Order No.08/2007 dated14.12.2007, which has been already declared ultra vires and voidab initio, and it also contain relevant observations striking downthe opinion of the Attorney General for Pakistan in that case. Hefurther made reference of Article 184(3), 187 and 188 of theConstitution in support of his arguments that suo motoproceedings in the present form are very much competent,particularly in the circumstances when question of publicexchequer is involved and the fallout of judgment under challengeis huge burden over it, which has brought this case within thedomain of public interest litigation. In the end, he referred the caseof Hussain Badshah v. Akhtar Zaman (2006 SCMR 1163) toconclude his submissions that if the judgment under challenge isreviewed, its applicability shall be made prospectively so that thepensionary benefits already availed by the former/retired Judges ofthe High Court, having less than five years service to their credit,are not disturbed. He also made a statement before the Court thathe will further provide written synopsis of his arguments to shownumber of glaring deficiencies in the judgment under challenge,which makes it a judgment per incuriam.53. Mr. Azam Khan Khattak, Additional Advocate General,Balochistan, when came at the rostrum, simply adopted thearguments of learned Attorney General for Pakistan, although by

Const. Petition No.127 of 2012 65that time, the learned Attorney General for Pakistan has not evenmade his arguments in the case. When confronted with thisposition, he submitted that he knows that what the learnedAttorney General for Pakistan is going to argue in this case,therefore, without waiting for his submissions, he is making suchstatement before the Court.54. Mr. Muhammad Qasim Mirjat, learned AdditionalAdvocate General Sindh argued that only confirmed/permanentjudges of the High Court are entitled for pensionary benefits andnot those who had performed only as additional judges of the HighCourt. He further argued that the scheme under the Constitutionwith reference to Article 205 of the Constitution, read with its FifthSchedule and the President’s Order 9 of 1970 or 3 of 1997, is quiteclear, therefore, he would not support the claim of the honourableretired judges of the High Court, who have rendered less than fiveyears service as such and now claiming pensionary benefits on thebasis of the judgment under challenge.55. Mr. Hanif Khatana, learned Additional Advocate General,Punjab conceded to the jurisdiction of this Court in entertainingand deciding the present petition on merits, however, makingreference to the language of paragraph-2 of Fifth Schedule toArticle 205 of the Constitution, he submitted that every judge ofthe High Court, irrespective of his length of service is entitled forpensionary benefits.56. Mr. Zaheer Bashir Ansari, ASC, who appeared in thiscase on behalf of his late brother Justice Tanvir Bashir Ansari,retired judge of the High Court, was unable to give exact date of hisappointment and retirement, but pointed out that on his

Const. Petition No.127 of 2012 66retirement date i.e. 25.6.2005, late Justice Tanvir Bashir Ansarihas served as a Judge of the High Court for a period of 04-years,01-month and few days. He further adopted the argumentsadvanced by other senior ASCs in this case.57. Syed Arshad Hussain Shah, Additional Advocate General,KPK in his arguments, stressed upon the definition of word “every”and in this context, referred the case of Abrar Hassan v.Government of Pakistan (PLD 1976 SC 315). In this case, in apetition in the nature of quo warranto, one of the question involvedwas that whether a writ of such nature could be issued against aHigh Court Judge. In that context, it was observed that often terms"Judge" and "Court" are used interchangeably as synonymous yetthis does not obliterate distinction between a Judge as anindividual and Court as seat of justice as an institution. In theend, prayer for grant of writ of quo warranto against the judge wasdeclined and the petitioner was, therefore, dismissed. Hecontended that these suo moto proceedings in order to examine thelegality and propriety of the judgment under challenge on thetouchstone of per incuriam, etc are very much maintainable,however, in the peculiar facts and circumstances, he supported thejudgment under challenge as well as the claim of every retiredjudge of the High Court for pensionary benefits, irrespective of hisactual length of service as such.58. Mr. Irfan Qadir, learned Attorney General for Pakistan, inhis arguments boldly asserted that judges cannot be made judge oftheir own cause for the purpose of determining their pensionarybenefits. Thus, neither he is supporting these suo motoproceedings, nor the judgment under challenge, as determination

Const. Petition No.127 of 2012 67of right to pension in terms of the clear language of paragraph-2 ofthe Fifth Schedule to Article 205 of the Constitution is exclusivedomain of the President of Pakistan. He further contended thatfrom the definition of word “Judge” given under Article 260 of theConstitution, even the additional judges of the High Court, if thePresident so determines, could be entitled for pensionary benefitirrespective of the bar under Article 207 of the Constitution.Expressing his view about some other legal aspects of thejudgment under challenge, he firstly argued that even wrong lawdeclared by this Court cannot be corrected under anyconstitutional jurisdiction vested with the Supreme Court,however, at a later stage, he conceded that Supreme Court hasunfettered powers under the Constitutional mandate to ensurecorrect interpretation of law and its applicability to all the citizen ofthe Country and no palpable wrong pronouncement of law couldhold the field once it has come to the notice of the Court andnecessary proceedings have been initiated for this purpose. Hefurther argued that judgment under challenge is not entirelydependent upon the discussion made in its paragraph-20, relatingto President’s Order No.08/2007, which has been set at naughtand declared to be void ab initio in the case of Sindh High CourtBar Association (supra). He also brought to our notice that as perhis information, another President’s Order based on the summaryof Ministry of Law for determining the right to pension of thehonourable retired judges of the High Court, having rendered lessthan five years service, is in the pipeline. However, till theconclusion of these proceedings and announcement of our shortorder in Court on 11.4.2013, no such President’s Order has seenthe light of the day.

Const. Petition No.127 of 2012 6859. For a short while, Justice Abdul Ghani Sheikh, with thepermission of the Court, also came at the rostrum to make hissubmissions. He read before us paragraph-2 & 3 of the FifthSchedule to Article 205 of the Constitution to advance his case forpensionary benefits irrespective of his length of service and insupport of his submission, placed reliance upon the cases of StateBank of Pakistan v. Mst. Mumtaz Sultana (2010 SCMR 421) andPakistan through Secretary Ministry of Finance v. MuhammadHimayatullah Farukhi (PLD 1969 SC 407). In the case of State ofBank of Pakistan (supra), dealing with some dispute relating toVoluntary Golden Handshake Scheme floated by the State Bankof Pakistan through Circular No.9 of 1997, dated 23.10.1997,while outlining the distinction between a judgment in rem andjudgment in personam as also highlighted in the case of PirBakhsh and others v. The Chairman, Allotment Committee andothers (PLD 1987 SC 145), it was held that the benefit allowed toone group of employees cannot be denied to another group ofemployees in similar position, even if they were not party to theearlier proceedings, as the State Bank of Pakistan was bound bythe earlier decision to redress their grievance accordingly. In theother case of Pakistan through Secretary Ministry of Finance(supra), in depth discussion as regards the Principle of locuspoenitentiae (power of receding till a decisive step taken) was madeand it was held that the authority that has power to make an orderhas also the power to undo it, but subject to the exception thatwhere the order has taken legal effect, and in pursuance thereofcertain rights have been created in favour of any individual, suchorder cannot be withdrawn or rescinded to the detriment of hisrights.

Const. Petition No.127 of 2012 6960. It may be mentioned here that some other seniorASCs/ASCs and honourable retired judges, who appeared duringthe proceedings of this case on some dates, did not come forwardto make their submissions, though before conclusion of theproceedings on 11.4.2013, right to audience was extended to all,that if any one of them intends to argue the case, he may come atthe rostrum to make his submissions.61. When we look at the detailed submissions of the learnedsenior ASCs, ASCs, the Additional Advocate Generals of fourProvinces, the Attorney General for Pakistan, some of the retiredjudges of the High Court, who appeared in person and the twoamici curiae, as noted above, we find that for proper adjudication ofall these factual and legal controversies, framing of three mootpoints for consideration covering the gamut of these submissionswill be useful, which are accordingly framed as under:-(a)Whether the present suo moto proceedings, emanatingfrom the office note of the Registrar dated 21.11.2012, arenot maintainable on the basis of various legal contentionsraised before us qua the powers of this Court vestedunder Articles 184, 185, 187 and 188, in Chapter-1, Part-VII of our Constitution?(b)What could be the correct interpretation of Article 205, itsFifth Schedule in the Constitution, read with applicablePresident’s Orders No.09 of 1970 / 03 of 1997?(c)Whether under any legal principle, pensionary benefits,etc, already availed by the honourable retired judges ofthe High Court on the basis of judgment under challengecould be retained by them, or they are liable to

Const. Petition No.127 of 2012 70return/restore/refund all such benefits to the publicexchequer?62. As to the question of maintainability of this petition, fromthe arguments advanced by the learned ASCs etc, we find that thefirst objection as to its maintainability is raised in the context ofjurisdiction and powers of the Registrar of this Court forsubmission of the note dated 21.11.2012, which formed basis forthe subsequent order of the Honourable Chief Justice for fixationof this petition before the larger Bench. The other objections as tothe maintainability are with reference to the powers of this Courtunder Articles 184(3), 187 and 188 of the Constitution quaapplicability of the principles of “stare decisis”, “res judicata”,“locus poenitentiae” and “past and closed transaction”. In thisregard, when we have confronted the learned ASCs with a simplebut important question, that if for any reason the note of theRegistrar dated 21.11.2012 is improper and its contents arediscarded, but at the same time when the issue in relation to theillegality of a judgment, which has taken the form of a precedentlaying down an incorrect law, and its colossal fallout on the publicexchequer,which has brought it within the domain of publicinterest litigation, has come to our notice in any form, whether forsome technical reasons alone, the Court should still desist fromexercising its jurisdiction vested under Articles 184(3), 187 and188 of the Constitution, the unanimous answer to this questionwas in the negative i.e. in exercise of powers under theconstitutional provisions, this Court has unlimited jurisdiction toreopen, revisit or review, and for this purpose examine anyjudgment earlier pronounced by this Court to set the law correct,

Const. Petition No.127 of 2012 71to cure injustice, save it from becoming an abuse of the process oflaw and this judicial system. The Attorney General for Pakistan,during his arguments, at one stage stated that under nocircumstances does this Court have jurisdiction to examine or reviewthe judgment under challenge, but later on, he also conceded to thislegal position. Although some of the learned ASCs still reiterated theirarguments for pressing into service the principle of stare decisis, resjudicata and “past and closed transaction” and cited some judgmentsin support thereof, but at the conclusion of the proceedings, none ofthem could dispute that the principle of stare decisis, res judicata, orpast and closed transaction in their literal form are not applicable tothe proceedings before the apex Court in a situation when the veryjudgment under challenge is found “per incuriam”.63. In order to exhibit some of the powers of this Court, whichcould be exercised to consider a question of public importance withreference to enforcement of any fundamental right; for doingcomplete justice in any case or matter pending before it, and powersof review available to the Supreme Court, it will be useful toreproduce hereunder Articles 184(3), 187 and 188 of the Constitutionrespectively and also to discuss few celebrated judgments,enunciating some broad principles of law in this regard. For thispurpose, reference is made here to the judgments in the cases ofAbdul Ghaffar- Abdul Rehman (supra), Sindh High Court BarAssociation (supra) and Justice Khurshid Anwar Bhinder (supra).Article 184(3) of the Constitution.“184. Original jurisdiction of Supreme Court.-(1) The Supreme Courtshall, to the exclusion of every other Court, have original jurisdiction inany dispute between any two or more Governments.Explanation.-In this clause, “Governments” means the FederalGovernment and the Provincial Governments.

Const. Petition No.127 of 2012 72(2) In the exercise of the jurisdiction conferred on it by clause (1), theSupreme Court shall pronounce declaratory judgments only.(3) Without prejudice to the provisions of Article 199, the SupremeCourt shall, if it considers that a question of public importance withreference to the enforcement of any of the Fundamental Rights conferredby Chapter I of Part II is involved, have the power to make an order of thenature mentioned in the said Article.”Article 187 of the Constitution.“187. Issue and execution of processes of Supreme Court.-(1)Subject to clause (2) of Article 175, the Supreme Court shall havepower to issue such directions, orders or decrees as may benecessary for doing complete justice in any case or matterpending before it, including an order for the purpose of securingthe attendance of any person or the discovery or production ofany document.(2) Any such direction, order or decree shall be enforceablethroughout Pakistan and shall, where it is to be executed in aProvince, or a territory or an area not forming part of a Provincebut within the jurisdiction of the High Court of the Province, beexecuted as if it had been issued by the High Court of thatProvince.(3) If a question arises as to which High Court shall give effect toa direction, order or decree of the Supreme Court, the decision ofthe Supreme Court on the question shall be final.”Article 188 of the Constitution.“188. Review of judgments or orders by the Supreme Court.-The Supreme Court shall have power, subject to the provisions ofany act of Majlis-e-Shoora (Parliament) and of any rules made bythe Supreme Court, to review any judgment pronounced or anyorder made by it.”Excerpt from the Abdul Ghaffar-Abdul Rehman (supra)’s case.(PLD 1998 SC 363).“14. ….. Article 188 of the Constitution confers power on thisCourt subject to the provisions of any Act of the Parliament andany rules made by the Supreme Court to review any judgmentpronounced or any order made by it. Whereas' Order XXVI, rule 1of the Rules lays down that subject to the law and practice of theCourt, the Court may review its judgment, order of any civilproceeding, on ground similar to those mentioned in Order XLVII,rule 1 of C.P.C. and any criminal proceeding on the ground of anerror apparent on the face of the record.It may be observed that Order XLVII, rule 1 of C.P.C. givesa right to a party to apply for review if he is aggrieved by theorders or decrees, or decisions mentioned in sub-clauses (a), (b),

Const. Petition No.127 of 2012 73(c) of rule 1 on the three grounds, namely, discovery of new andimportant matter or evidence which, after the exercise of duediligence, was not within his knowledge or could not be producedby him at the time when the decree was passed or order made, oron account of some mistake or error apparent on the face of therecord, or for any other sufficient reason.15. We may now refer to the judgments relied upon by thelearned counsel for the parties. Mr.S. Sharifuddin Pirzads hasreferred to the following cases:-(i) Lt.-Col. Nawabzada Muhammad Amir Khan v. TheController of Estate Duty, Government of Pakistan,Karachi and others (PLD 1962 SC 335).(ii) Fida Hussain v. The Secretary, Kashmir Affairs andNorthern Affairs Division, Islamabad andanother (PLD 1995 SC 701),(iii) Suba through Legal Heirs v. Fatima Bibi throughLegal Heirs and others (1996 SCMR 158);(iv) Mian Rafiq Saigol and another v. Bank of Creditand CommerceInternational (Overseas) Limited and another (PLD1997 SC 865).(v) Unreported order in Civil Review Petition No.l-K of1989 (Begum Asfar Saeed and others v. Ch.AbdulAziz) rendered by this Court on 10-3-1991.In the above first case, Cornelius C.J. made the followingobservation as to the scope of review:"For the present purpose, the emphasis should, in myopinion, be laid upon the consideration that, for the doingof "complete justice", the Supreme Court is vested with fullpower, and I can see no reason why the exercise of thatfull power should be applicable only in respect of a mattercoming up before the Supreme Court in the form of adecision by a High Court or some subordinate Court. I cansee no reason why that purpose in its full scope, shouldnot also be applicable for the purpose of reviewing ajudgment delivered by the Supreme Court itself: providedthat thereby found a necessity within the meaning of theexpression "complete justice" to exercise that power. Itmust, of course, be borne in mind that by assumption,every judgment pronounced by the Court is a consideredand solemn decision on all points arising out of the case,and further that every reason compels towards the grantof finality in favour of such judgments delivered by aCourt which sits at the apex of the judicial system. Again,the expression "complete justice" is clearly not to beunderstood in any abstract or academic sense. So much isclear from the provision in Article 163(3) that a writtenorder is to be necessary for the purpose of carrying out theintention to dispense "complete justice". There must be asubstantial or material effect to be produced upon theresult of the case if, in the interests of "complete justice"

Const. Petition No.127 of 2012 74the Supreme Court undertakes to exercise itsextraordinary power of review of one of its own consideredjudgments. If there be found material irregularity, and yetthere be no substantial injury consequent thereon, theexercise of the power of review to alter the judgment wouldnot necessarily be required. The irregularity must be ofsuch a nature as converts the process from being one inaid of justice to a process that brings about injustice.Where, however, there is found to be something directedby the judgment of which review is sought which is inconflict with the Constitution or with a law of Pakistanthere it would be the duty of the Court unhesitatingly toamend the error. It is a duty which is enjoyed upon everyJudge of the Court by the solemn oath which he takeswhen he enters upon his duties, viz., to "preserve, protectand defend the Constitution and law of Pakistan."In the above report, Kaikaus, J., who rendered hisseparate opinion made the following observations:-"to permit a review on the ground of incorrectness wouldamount to granting the Court the jurisdiction to hearappeals against its own judgments or perhaps ajurisdiction to one Bench of the Court to hear appealsagainst other benches; and that surely is not the scope ofreview jurisdiction. No mistake in a considered conclusion,whatever the extent of that mistake, can be a ground forthe exercise of review jurisdiction. On a properconsideration it will be found that the principlesunderlying the limitations mentioned in Order XLVII, rule1, Civil Procedure Code, are implicit in the nature ofreview jurisdiction. While I would prefer not to acceptthose limitations as if they placed any technicalobstruction in the exercise of the review jurisdiction of thisCourt I would accept that they embody the principles onwhich this Court would act in the exercise of suchjurisdiction. It is not because a conclusion is wrong butbecause something obvious has been overlooked, someimportant aspect of the matter has not been considered,that a review petition will lie. It is a remedy to be usedonly in exceptional circumstances."In the second case this Court comprising the then learnedChief Justice and four companion Judges entertained a suo motureview and allowed the same for the following reasons:-"11. The above case supports the petitioner's stand.Another aspect which escaped notice of this Court in thejudgment under review is that some of the other civilservants/employees placed in the same position as thepetitioner was had been considered for promotion to BPS-17 and in fact were promoted, whereas the petitioner wasdenied the above benefit which amounted to violation ofinter alia Article 25 of the Constitution of the IslamicRepublic of Pakistan, 1973. In this regard, reference may

Const. Petition No.127 of 2012 75be made to the case of I.A. Sharwani and others v.Government of Pakistan through Secretary, FinanceDivision, Islamabad and others 1991 SCMR 104112 ………………………………………………………………………………………………………………………………………..13 …………………………………………………….…………..………………………………………………………………..14. The upshot of the above discussion is that thejudgment under review is liable to be recalled as itproceeded on wrong premises. We would, therefore, allowthe above Suo Motu Review Petition and recall the abovejudgment. In consequence thereof, petitioner's Civil AppealNo. 216 of 1991 is allowed and the judgment of theTribunal is set aside and the respondents are directed toconsider the petitioner's case for promotion to BPS-17."In the third case this Court, while accepting a reviewpetition, made following observations:-"From the above discussed legal position, it emerges that apetition for review before this Court would lie on grounds,which are analogous to those embodied in Order XLVII,Rule 1, C.P.C. The review petition would also becompetent if something which is obvious in the judgmenthas either been overlooked and that if it would have beenconsidered by the Court, the final result of the case wouldhave been otherwise. No review petition, however, wouldlie on the ground of a wrong decision by the Court or thatanother view is possible on reconsideration."In the fourth case also the scope of review was succinctlydiscussed by this Court after referring the relevant case-law andin this regard the following observations were made:-- '"From the preceding discussion it follows that reviewproceedings cannot partake re-hearing of a decided case.Therefore, if the Court has taken a conscious anddeliberate decision on a point of law or fact whiledisposing of a petition or an appeal, review of suchjudgment or order cannot be obtained on the grounds thatthe Court took an erroneous view or that another view onreconsideration is possible. Review also cannot be allowedon the ground of discovery of some new material, if suchmaterial was available at the time of hearing of appeal orpetition but not produced. A ground not urged or raised atthe hearing of petition or appeal cannot be allowed to beraised in review proceedings. Only such errors in thejudgment/order would justify review, which are selfevident,found floating on the surface, are discoverablewithout much deliberations, and have a material bearingon the final result of the case."

Const. Petition No.127 of 2012 76In the last unreported order of this Court in the case ofBegum Asfar Saeed and others v. Ch. Abdul Aziz, after referring anumber of cases, the following conclusion was recorded as to thescope of a review:-"From an examination of the aforesaid precedents of thisCourt, it seems settled that overlooking some importantaspect of the matter from consideration or an erroneousassumption of a material fact affecting the conclusionreached in the judgment are valid grounds on which thereview of a judgment can be permitted. In view of what isstated it is not necessary to refer to the judgments cited bythe respondent on the scope of review, because mostly thecases relate to reargument of an appeal in reviewjurisdiction which is not permissible, or to the raising ofpleas which were not agitated at the hearing of the appealor contained a reassertion of the law as laid down in thecase of Muhammad Amir Khan v. Controller of EstateDuty (PLD 1962 SC 335) on which the respondent himselfrelied."16. We may now refer to the following cases relied upon by Mr.Gulzarin Kiani, learned Advocate Supreme Court for therespondents: --(i) Sajjan Singh and others v,. The State of Rajasthanand others (AIR 1965 SC 845);(ii) The Keshav Mills Co. Ltd., Petlad v. TheCommissioner of Income Tax, Bombay North,Ahmedabad (AIR 1965 SC 1636);(iii) Pillani Investment Corporation Ltd. v. The IncometaxOfficer, A Ward, Calcutta and another (AIR1972 SC 236);(iv) Sow Chandra Kanta and another v. Sheikh Habib(AIR 1975 SC 1500)(v) M/s. Northern India Caterers (India) Ltd. v. Lt.Governor of Delhi (AIR 1980 SC 674);(vi) Col. Avtar Singh Sekhom v. Union of, India andothers (AIR 1980 SC 2041);(vii) A.R. Antulay, v. R.S. Nayak and another (AIR 1988SC 1531)In the above first case, the India Supreme Court whiledilating upon Article 141 of the Indian Constitution relating to thepower of review of the Supreme Court observed that theConstitution does not place any restriction on the power of theSupreme Court to review its earlier decision or even to departfrom them and any matters relating to the decision ofConstitutional points which have significant impact on thefundamental rights of citizens, it would be prepared to review itsearlier decision in the interest of public good and that thedoctrine stare decisis may not be strictly applied in this context.It was further observed that this doctrine will not be permitted toperpetuate erroneous decisions announced by the Supreme Courtto the detriment of the general welfare. It was also observed that

Const. Petition No.127 of 2012 77the question, whether different view is to be taken, would dependon the nature of infirmity alleged in the earlier decision, itsimpact on public good and the validity and compelling characterof situations urged in support of the contrary view.In the second case the Indian Supreme Court examinedthe scope as to when it should change its previous view in thefollowing words:-"When it is urged that the view already taken by thisCourt should be reviewed and revised it may notnecessarily be an adequate reason for such review andrevision to hold that though the earlier view is areasonably possible view, the alternative view which ispressed on the subsequent occasion is more reasonable.In reviewing and revising its earlier decision, this Courtshould ask itself whether in the interests of the publicgood or for any other valid and compulsive reasons, it isnecessary that the earlier decision should be revised.When this Court decides questions of law, its decisionsare, under Article 141, binding on all Courts within theterritory of India, and so, it must be the constantendeavour and concern of this Court to introduce andmaintain an element of certainty and continuity in theinterpretation of law in the country. Frequent exercise bythis Court of its power to review its earlier decisions on theground that the view pressed before it later appears to theCourt to be more reasonable, may incidentally tend tomake law uncertain and introduce confusion which mustbe consistently avoided. That is not to say that if on asubsequent occasion, the Court is satisfied that its earlierdecision was clearly erroneous, it should hesitate tocorrect the error; but before a previous decision ispronounced to be plainly erroneous, the Court must besatisfied with a fair amount of unanimity amongst itsmembers that a revision of the said view is fully, justified.It is not possible or desirable, and in any case it would beinexpedient to lay down any principles which shouldgovern the approach of the Court in dealing with thequestion of reviewing and revising its earlier decisions. Itwould always depend upon several relevantconsiderations:-- What is the nature of the infirmity orerror on which a plea for a review and revision of theearlier view is based? On the earlier occasion, did somepatent aspects of the question remain unnoticed, or wasthe attention of the Court not drawn to any relevant andmaterial statutory provision, or was any previous decisionof this Court bearing on the point not noticed? Is theCourt hearing such plea fairly unanimous that there issuch an error in the earlier view? What would be theimpact of the error on the general administration of law oron public good? Has the earlier decision been followed onsubsequent occasions either by this Court or by the HighCourts? And, would the reversal of the earlier decisionlead to public inconvenience, hardship or mischief? These

Const. Petition No.127 of 2012 78and other relevant considerations must be carefully bornein mind whenever this Court is called upon to exercise itsjurisdiction to review and revise its earlier decisions.These considerations become still more significant whenthe earlier decision happens to be a unanimous decisionof a Bench of five learned Judges of this Court."In the third case it was urged by the Indian SupremeCourt that when it was not shown that the earlier judgment of theSupreme Court was erroneous or that any vital point was notconsidered, the Supreme Court would decline to review its earlierjudgment.In the fourth case, Krishna Iyer, J. made the followingweighty observations as to the scope of review:--"Mr. Daphtary, learned counsel for the petitioners, hasargued at length all the points which were urged at theearlier stage when we refused special leave thus makingout that a review proceeding virtually amounts to a rehearing.May be we were not right in refusing special leaveright in the first round but, once an order has beenpassed by this Court, a review thereof must be subject tothe rules of the game and cannot be lightly entertained. Areview of a judgment is a serious step and reluctant resortto it is proper only where a glaring omission or patentmistake or like grave error has crept in earlier by judicialfallibility. A mere repetition through different counsel ofold and overruled arguments, a second trip overineffectually covered ground or minor mistakes ofinconsequential import are obviously insufficient. The verystrict need for compliance with these factors is therationale behind the insistence of counsel's certificatewhich should not be a routine affair or a habitual step. Itis neither fairness to the Court which decided norawareness of the precious public time lost what with ahuge back-log of dockets waiting in the queue for disposal,for counsel to issue easy certificates for entertainment ofreview and fight over again the same battle which hasbeen fought and lost. "In the fifth case, Krishna Iyer, J. of the Indian SupremeCourt again enunciated the scope of a review by holding that aparty is not entitled to seek a review of the judgment delivered bythe Supreme Court merely for the purpose of re-hearing and afresh decision of the case. It has been pointed out that the normalprinciple is that a judgment pronounced by the Court is final anddeparture from that principle is justified only whencircumstances of a substantial and compelling character make itnecessary to do.In the sixth case, Krishan Iyer, J. again reiterated thatreview is not a routine procedure but the material error should bemanifest on the face of the earlier order resulting in miscarriageof justice and must be proved.

Const. Petition No.127 of 2012 79In the seventh case, the Indian Supreme Court highlightedthat there is no distinction as to the power between Benches ofthe Supreme Court because of the number of Judges constitutedthe same, in the following words:-"It is time to sound a note of caution. The Supreme Courtunder its Rules of Business ordinarily sits in divisions andnot as a whole one. Each Bench, whether small or large,exercises the powers vested in the Court and decisionsrendered by he benches irrespective of their size areconsidered as decisions of the Court. The practice hasdeveloped that a larger Bench is entitled to overrule thedecision of a smaller Bench notwithstanding the fact thateach of the decisions is that of the Court. That principle,however, would not apply in the instant case and a Benchof Seven Judges is not entitled to reverse the decision ofthe Constitution Bench,. Overruling when made by alarger Bench of an earlier decision of a smaller one isintended to take away the precedent value of the decisionwithout affecting the binding effect of the decision in theparticular case. "17. From the above case-law, the following principles of laware deductible:(i)That every judgment pronounced by the SupremeCourt is presumed to be a considered, solemn andfinal decision on all points arising out of the case;(ii)that if the Court has taken a conscious anddeliberate decision on a point of fact or law, areview petition will not lie;(iii)that the fact the view canvassed in the reviewpetition is more reasonable than the view foundfavour with the Court in the judgment/order ofwhich review is sought, is not sufficient to sustaina review petition;(iv)that simpliciter the factum that a materialirregularity was committed would not be sufficientto review a judgment/order but if the materialirregularity was of such a nature, as to convert theprocess from being one in aid of justice to aprocess of injustice, a review petition would lie;(v)that simpliciter the fact that the conclusionrecorded in a judgment/order is wrong does notwarrant review of the same but if the conclusion iswrong because something obvious has beenoverlooked by the Court or it has failed to considersome important aspect of the matter, a reviewpetition would lie;

Const. Petition No.127 of 2012 80(vi)(vii)(viii)that if the error in the judgment/order is somanifest and is floating on the surface, which is somaterial that had the same been noticed prior tothe rendering of the judgment the conclusionwould have been different, in such a case a reviewpetition would lie;that the power of review cannot be invoked as aroutine matter to rehear a case which has alreadybeen decided nor change of a counsel wouldwarrant sustaining of a review petition, but thesame can be pressed into service where a glaringomission or patent mistake has crept in earlier byjudicial fallibility;that the Constitution does not place any restrictionon the power of the Supreme Court to review itsearlier decisions or even to depart from them northe doctrine stare decisis will come in its way solong as review is warranted in view of thesignificant impact on the fundamental rights ofcitizens or in the interest of public good;(ix) that the Court is competent to review itsjudgment/order suo motu without any formalapplication;(x)that under the Supreme Court Rules, it sits indivisions and not as a whole. Each Bench whethersmall or large exercises the same power vested inthe Supreme Court and decisions rendered by theBenches irrespective of their size are decisions ofthe Court having the same binding nature.Excerpt from Sindh High Court Bar Association (supra)’s case.(PLD 2009 SC 879)“167. At this stage, it is necessary to elucidate through our ownjurisprudence and that of other jurisdictions the principle of trichotomyof powers and the power of judicial review vested in the superior Courts.Case-law from the Indian jurisdiction is particularly instructive onaccount of the common origins of constitutionalism springing from theGovernment of India Act, 1935 read with the Indian Independence Act,1947. The Supreme .Court of India, in the case of Minerva Mills Ltd v.Union of India (AIR 1980 SC 1789) held that the judiciary was theinterpreter of the Constitution and was assigned the delicate task ofdetermining the extent of the power conferred on each branch of thegovernment, its limits and whether any action of that branchtransgressed such limits. It may be advantageous to reproduce belowrelevant excerpts from the judgment of the Indian Supreme Courtdelivered by Bhagwati J, in the said case: -"92………Parliament too, is a creature of the Constitution and itcan only have such powers as are given to it under the

Const. Petition No.127 of 2012 81Constitution. It has no inherent power of amendment of theConstitution and being an authority created by the Constitution,it cannot have such inherent power, but the power of amendmentis conferred upon it by the Constitution and it is a limited powerwhich is so conferred. Parliament cannot in exercise of this powerso amend the Constitution as to alter its basic structure or tochange its identity. Now, if by constitutional amendment,Parliament were granted unlimited power of amendment, it wouldcease to be an authority under the Constitution, but wouldbecome supreme over it, because it would have power to alter theentire Constitution including its basic structure and even to putan end to it by totally changing its identity. It will therefore beseen that the limited amending power of Parliament is itself anessential feature of the Constitution, a part of its basic structure,for if the limited power of amendment were enlarged into anunlimited power, the entire character of the Constitution wouldbe changed. It must follow as a necessary corollary that anyamendment of the Constitution which seeks, directly or indirectly,to enlarge the amending power of Parliament by freeing it fromthe limitation of unamendability of the basic structure would beviolative of the basic structure and hence outside the amendatorypower of Parliament.93. It is a fundamental principle of our constitutional scheme,and I have pointed this out in the preceding paragraph, that everyorgan of the. State, every authority under the Constitution.Derives its power from the Constitution and has to act within thelimits of such power. But then the question arises as to whichauthority must decide what are the limits on the power conferredupon each organ or instrumentality of the State and whethersuch limits are transgressed or exceeded. Now there are threemain departments of the State amongst which the powers ofGovernment are divided; the Executive, the Legislature and theJudiciary. Under our Constitution we have no rigid separation ofpowers as in the United States of America, but there is a broaddemarcation, though, having regard to the complex nature ofgovernmental functions, certain degree of overlapping isinevitable. The reason for this broad separation of powers is that"the concentration of powers in any one organ may" to quote thewords of Chandrachud, J. (as he then was) in Smt. IndiraGandhi's case (AIR 1975 SC 2299) "by upsetting that fine balancebetween the three organs, destroy the fundamental premises of ademocratic Government to which were pledged." Take forexample, a case where the executive which is in charge ofadministration acts to the prejudice of a citizen and a questionarises as to what are the powers of the executive and whether theexecutive has acted within the scope of its powers. Such aquestion obviously cannot be left to the executive to decide andfor two very good reasons. First, the decision of the questionwould depend upon the interpretation of the Constitution and thelaws and this would pre-eminently be a matter, fit to be decidedby the judiciary,. because it is the judiciary which alone would bepossessed of expertise in this field and secondly, theconstitutional and legal protection afforded to the citizen wouldbecome illusory if it were left to the executive to determine thelegality of its own action. So also if the legislature makes a lawand a dispute arises whether in making the law the legislaturehas acted outside the area of its legislative competence or the lawis violative of the fundamental rights or of any other provisions ofthe Constitution, its resolution cannot, for the same reasons, be,left to the determination of the legislature. The Constitution has,therefore, created an independent machinery for resolving thesedisputes and this independent machinery is the judiciary which isvested with the power of judicial review to determine the legalityof executive action and the validity of legislation passed by thelegislature. It is the solemn duty of the judiciary under theConstitution to keep the different organs of the State such as theexecutive and the legislature within the limits of the powerconferred upon them by the Constitution. This power of judicial

Const. Petition No.127 of 2012 82review is conferred on the judiciary by Articles 32 and 226 of theConstitution. Speaking about draft Article 25, corresponding topresent Article 32 of the Constitution, Dr. Ambedkar, theprincipal architect of our Constitution, said in the ConstituentAssembly on 9th December, 1948:"If I was asked to name any particular article in this Constitutionas the most important - an article without which thisConstitution would be a nullity - I could not refer to any otherarticle except this one. It is the very soul of the Constitution andthe very heart of it and I am glad that the House has realized itsimportance". (CAD debates, Vol. VII, p, 953) It is a cardinalprinciple of our Constitution that no one howsoever highly placedand no authority however lofty can claim to be the sole judge ofits power under the Constitution or whether its action is withinthe confines of such power laid down by the Constitution. Thejudiciary is the interpreter of the Constitution and to the judiciaryis assigned the delicate task to determine what is the powerconferred on each branch of Government, whether it is limited,and if so, what are the limits and whether any action of thatbranch transgresses such limits. It is for the judiciary to upholdthe constitutional values and to enforce the constitutionallimitations. That is the essence of the rule of law, which inter aliarequires that "the exercise of powers by the Government whetherit be the legislature or the executive or any other authority, beconditioned by the Constitution and the law". The power ofjudicial review is an integral part of our constitutional system andwithout it, there will be no Government of laws and the rule oflaw would become a teasing illusion and a promise of unreality. Iam of the view that if there is one feature of our Constitutionwhich, more than any other, is basic and fundamental to themaintenance of democracy and the rule of law, it is the power ofjudicial review and it is unquestionably, to my mind, part of thebasic structure of the Constitution. Of course, when I say this Ishould not be taken to suggest that however effective alternativeinstitutional mechanisms or arrangements for judicial reviewcannot be made by Parliament. But what I wish to emphasise isthat judicial review is a vital principle of our Constitution and itcannot be abrogated without affecting the basic structure of theConstitution. If by a Constitutional amendment, the power ofjudicial review is taken away and it is provided that the validity ofany law made by the Legislature shall not be liable to be called inquestion on any ground, even if it is outside the legislativecompetence of the legislature or is violative of any fundamentalrights, it would be nothing short of sub-version of theConstitution, for it would make a mockery of the distribution oflegislative powers between the Union and the States and renderthe fundamental rights meaningless and futile. So also if aconstitutional amendment is made which has the effect of takingaway the power of judicial review and providing that noamendment made in the Constitution shall be liable to bequestioned on any ground, even if such amendment is violative ofthe basic structure and, therefore, outside the amendatory powerof Parliament, it would be making Parliament sole judge of theconstitutional validity of what it has done and that would in effectand substance, nullify the limitation on the amending power ofParliament and affect the basic structure of the Constitution. Theconclusion must therefore inevitably follow that clause (4) ofArticle 368 is unconstitutional and void as damaging the basicstructure of the Constitution.94. That takes us to clause (5) of Article 368. This clause openswith the words "For the removal of doubts" and proceeds todeclare that there shall be no limitation whatever on theamending power of Parliament under Article 368. It is difficult toappreciate the meaning of the opening words "For the removal ofdoubts" because the majority decision in Kesavananda Bharati'scase (AIR 1973 SC 1461) clearly laid down and left no doubt that

Const. Petition No.127 of 2012 83the basic structure of the Constitution was outside thecompetence of the mandatory power of Parliament and in Smt.Indira Gandhi's .case (supra) all the Judges unanimouslyaccepted theory of the basic structure as a theory by which thevalidity of the amendment impugned before them, namely, Article329A(4) was to be judged. Therefore, after the decisions inKesavananda Bharati's case and Smt. Indira Gandhi's case, therewas no doubt at all that the amendatory power of Parliament waslimited and it was not competent to Parliament to alter the basicstructure of the Constitution and clause (5) could not remove thedoubt which did not exist. What A clause (5) really sought to dowas to remove the limitation on the amending power ofParliament and convert it from a limited power into an unlimitedone."In A.K. Kaul v. Union of India (AIR 1995 SC 1403), justiciability of anaction of an authority functioning under the Indian Constitution wasdiscussed as under: -"The extent of those limitations on the powers has to bedetermined on an interpretation of the relevant provisions of theConstitution. Since the task of interpreting the provisions of theConstitution is entrusted to the Judiciary, it is vested with thepower to test the validity of an action of every authorityfunctioning under the Constitution on the touchstone of theconstitution in order to ensure that the authority exercising thepower conferred by the Constitution does not transgress thelimitations placed by the Constitutions on exercise of that power.This power of judicial review is, therefore, implicit in a writtenConstitution and unless expressly excluded by a provision of theConstitution, the power of judicial review is available in respect ofexercise of powers under any of the provisions of theConstitution. Justiciability relates to a particular field fallingwithin the purview of the power of judicial review. On account ofwant of judicially manageable standards, there, may be matterswhich are not susceptible to the judicial process. Such mattersare regarded as non-justiciable. In other words, during the courseof exercise of the power of judicial review it may be found thatthere are certain aspects of the exercise of that power which arenot susceptible to judicial process on account of want of judiciallymanageable standards and are, therefore, not justiciable."168. In the case of Raja Ram Pal v. Speaker, Lok Sabha [(2007) 3 SCC184] while dilating upon the role of the Supreme Court of India, it washeld that it was the solemn duty of the Court to protect the fundamentalrights guaranteed by the Constitution zealously and vigilantly. Relevantportion from the judgment is reproduced below: -"651. We have a written Constitution which confers powers ofjudicial review on this Court and on all High Courts. In exercisingpower and discharging duty assigned by the Constitution, thisCourt has to play the role of a 'sentinel on the qui vive' and it isthe solemn duty of this Court to protect the fundamental rightsguaranteed by Part III of the Constitution zealously and vigilantly.652. It may be stated that initially it was contended by therespondents-that this Court has no power to consider a complaintagainst any action taken by Parliament and no such complaintcan ever be entertained by the Court. Mr. Gopal Subramaniam,appearing for the Attorney General, however, at a later stageconceded (and I may say, rightly) the jurisdiction of this Court toconsider such complaint, but submitted that the Court mustalways keep in mind the fact that the power has been exercisedby a coordinate organ of the State which has the jurisdiction to

Const. Petition No.127 of 2012 84regulate its own proceedings within the four walls of the House.Unless, therefore, this Court is convinced that the action of theHouse is unconstitutional or wholly unlawful, it may not exerciseits extraordinary jurisdiction by re-appreciating the evidence andmaterial before Parliament and substitute its own conclusions forthe conclusions arrived at by the House.653. In my opinion, the submission is well-founded. This Courtcannot be oblivious or unmindful of the fact that the Legislatureis one of three organs of the State and is exercising powers underthe same Constitution under which this Court is exercising thepower of judicial review. It is, therefore, the duty of this Court toensure that there is no abuse or misuse of power by theLegislature without overlooking another equally importantconsideration that the Court is not a superior organ or anappellate forum over the other constitutional functionary. ThisCourt, therefore, should exercise its power of judicial review withutmost care, caution and circumspection."It was further held as under: -"656. In this connection, I may only observe that in Searchlight[Pandit Sharma (1)] as well as in Keshav Singh, it has beenobserved that there is no doubt that Parliament/State Legislaturehas power to punish for contempt, which has been reiterated inother cases also, for instance, in State of Karnataka v. Union ofIndia, (1977) 4 SCC 608, and in P. V. Narasimha Rao v. State,(1998) 4 SCC 626. But what has been held is that such decisionof Parliament/State, Legislature is not 'final and 'conclusive'. ThisCourt in all earlier cases held that in view of power of judicialreview under Articles 32 and 226 of the Constitution, theSupreme Court and High Courts have jurisdiction to decidelegality or otherwise of the action taken by State- authorities andthat power cannot be taken away from judiciary. There lies thedistinction between British Parliament and Indian Parliament.Since British Parliament is also 'the High Court of Parliament',the action taken or decision rendered by it is not open tochallenge in any court of law. This, in my opinion, is based on thedoctrine that there cannot be two parallel courts, i.e. Crown'sCourt and also a Court of Parliament ('the High Court ofParliament') exercising judicial power in respect of one and thesame jurisdiction. India is a democratic and republican. Statehaving a written Constitution which is supreme and no organ ofthe State (Legislature, Executive or Judiciary) can claimsovereignty or supremacy over the other. Under the saidConstitution, power of judicial review has been conferred onhigher judiciary (Supreme Court and High Courts)."In the case of I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), whilereferring to L. Chandra Kumar v. Union of India [(1997) 3 SCC 261] andS.R. Bommai v. Union of India [(1994) 3 SCC 1], it was held that thejudicial review was a basic feature of the Constitution and that the powerof judicial review was a constituent power which could not be abrogatedby judicial process of interpretation. It was further held that it was acardinal principle of the Constitution that no one could claim to be thesole judge of the 'power given under the Constitution and that its actionswere within the confines of the powers given by the Constitution.169. On the above survey of the case-law, it is clear that the power ofjudicial review is a cardinal principle of the Constitution. The Judges, tokeep the power of judicial review strictly judicial, in its exercise, do take

Const. Petition No.127 of 2012 85care not to intrude upon the' domain of the other branches of theGovernment. It is the duty of the judiciary to determine the legality ofexecutive action and the validity of legislation passed by the Legislature.At this stage, reference may also be made to our own jurisdiction where arobust defence of judicial review has been expounded:--Government of Balochistan through Additional Chief Secretary v.Azizullah Memon and 16 others (PLD 1993 SC 341 at p. 369)"The Constitution provides for separation of Judiciary from theExecutive. It aims at an independent Judiciary which is animportant organ of the State within the Constitutional sphere.The Constitution provides for progressive separation of theJudiciary and had fixed a time limit for such separation. Itexpired in the year 1987 and from then onwards, irrespective ofthe fact whether steps have been taken or not, judiciary standsseparated and does not and should not seek aid of executiveauthorities for its separation. Separation of judiciary is thecornerstone of independence of judiciary and unless judiciary isindependent, the fundamental right of access to justice cannot beguaranteed. One of the modes for blocking the road of free accessto justice is to appoint or' hand over the adjudication of rightsand trial of offence in the hands of the Executive Officers. This ismerely a semblance of establishing Courts which are authorisedto decide cases and adjudicate the rights, but in fact such Courtswhich are manned and run by executive authorities without beingunder the control and supervision of the judiciary can hardlymeet the demands of Constitution. Considering from this point ofview we find that the impugned Ordinance II of 1968 from thecognizance of the case till the revision is disposed of, the entiremachinery is in the hands of the executive from Naib-Tehsildar tothe official of the Government in the Ministry: Such a procedurecan hardly be conducive to the administration of justice anddevelopment of the area nor will it achieve the desired result ofbringing law and order, peace and tranquility or economicprosperity and well-being. The Constitution envisagesindependent Judiciary separate from the Executive. Thus anyTribunal created under the control and superintendence of theexecutive for adjudication of civil or criminal cases will be incomplete conflict with Articles 175, 9 and 25."The lower judiciary is a part of the judicial hierarchy in Pakistan.Its separation and independence is to be equally secured andpreserved as that of the superior judiciary. The lower judiciary ismore dependent and prone to financial dependence andharassment at the hands of the executive. In practice and effectthe separation of judiciary is the main problem of the lowerjudiciary which under several enactments and rules is practically,under the control and supervision of the executive. Articles 175and 203 lay down that the judiciary including lower judiciaryshall be separated from the executive and 'High Court shallsupervise and control all Courts subordinate to it'. Such controland supervision can be achieved only when the judiciary isadministratively and financially separate from the executive. Thenext step should be taken to devise proper scheme and framerules dealing with financial problems within the framework of theConstitution. So long financial independence is not achieved, itwill be difficult to improve the working conditions,accommodation, building and expansion to meet the growingneeds of the people."Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324)"Adverting to the above second peculiar feature that our country

Const. Petition No.127 of 2012 86has Federal system of Government which is based on trichotomyof power, it may be observed that each organ, of the State isrequired to function/operate within the bounds specified in theConstitution though one can say that the Judiciary is the weakestlimb as it does not have the resources or power which theLegislature or the Executive enjoy but it has been assigned veryimportant and delicate role to play, namely, to ensure that noneof the organs or the Government functionaries acts in violation ofany provision of the Constitution or of any other law and becauseof the above nature of the work entrusted to the Judiciary, it wasenvisaged in the Constitution that the Judiciary shall beindependent. I may reiterate that the independence of Judiciary isinextricably linked and connected with the Constitutional processof appointment of Judges of the superior Judiciary. The relevantConstitutional provisions are to be construed in a manner whichwould ensure the independence of Judiciary. At this juncture, itmay be stated that a written Constitution, is an 'organicdocument designed and intended to cater the need for all times tocome. It is like a living tree, it grows and blossoms with thepassage of time in order to keep pace with the growth of thecountry and its people; Thus, the approach, while interpreting aConstitutional provision should be dynamic, progressive andoriented with the desire to meet the situation, which has arisen,effectively. The interpretation cannot be a narrow and pedantic.But the Court's efforts should be to construe the same broadly, sothat 'it may be able to meet the requirement of ever changingsociety. The general words cannot be construed in isolation butthe same are to be construed in the context in which, they areemployed. In other words, their colour and contents are derivedfrom their context."24. The above principles will have to be kept in view whileconstruing the, provisions of the Constitution relating to theappointments/transfers of Judges of the superior Judiciary."The Constitution contemplates trichotomy of power inter se thepillars of the State, namely, Legislature, Executive and theJudiciary, each of the organs of the State has to function withinthe limits provided in Constitution. The Constitutional provisionsrelating to the appointments transfers of Judges of the superiorCourts, therefore, need to be examined in light of the Islamicconcept of justice. Islam had always attached unparalleledimportance to the concept of justice."Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC1445)"(v) That the hallmark of our Constitution is that it envisagesseparation of the Judiciary from the Executive (which is foundedon the Islamic Judicial System) in order to ensure independenceof Judiciary and. therefore, any Court or Tribunal which is notsubject to judicial review and administrative control of the HighCourt and/or the Supreme Court does not fit in within thejudicial framework of the Constitution;"(vi) That the right of 'access to justice to all' is a fundamentalright, which right cannot be exercised in the absence of anindependent Judiciary 'providing impartial, fair ' and justadjudicatory framework i.e. judicial hierarchy. TheCourts/Tribunals which are manned and run by ExecutiveAuthorities without being under the control and supervision ofthe High Court in terms of Article 203 of the Constitution canhardly meet the mandatory requirement of the Constitution;"(vii) That the independence of judiciary is inextricably linked andconnected with the process of appointment of Judges and thesecurity of their tenure and other terms and conditions."

Const. Petition No.127 of 2012 87Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504)"Now take up the main controversy arising in these petitions,whether setting up of Military Courts for trial of civilians foroffences not connected with the Armed Forces, is constitutionallyvalid? As stated above, our Constitution is based on the theory oftrichotomy of power which makes the three limbs of the State, theLegislature, the Executive and the Judiciary, independent of eachother in their respective spheres. Chapter I of Part VII of theConstitution deals with the judicature. The judicature accordingto Article 175(1) of the Constitution, consists of the SupremeCourt, a High Court for each Province and such other Courts asmay be established by law. The Courts created under Article175(1) (ibid) exercise such jurisdiction which is conferred on themeither by the Constitution or by or under any law as provided inArticle 175(2) ibid. The judicature stands separated from theexecutive as provided in Article 175(3) of the Constitution.Creation of Courts outside the control and supervision ofSupreme Court or the High Courts, therefore, not only militatesagainst the independence of Judiciary but it also negates theprinciple of trichotomy of power which is the basic feature of theConstitution."Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC869)"It is also mentioned in the Objectives Resolution that principlesof democracy, freedom, equality, tolerance and social justice asenunciated by Islam shall be enabled to order their lives inaccordance with teachings and requirements of Islam as set outin the Holy Qur'an and Sunnah and independence of judiciaryshall be fully secured. Objectives Resolution was even retained inthe Interim Constitution of 1972 as Preamble."Independence of Judiciary is a basic principle of theConstitutional system of governance in Pakistan. TheConstitution of Pakistan contains specific and categoricalprovisions for the independence of Judiciary. The Preamble andArticle 2A state that "the independence of Judiciary shall be fullysecured"; and with a view to achieve .this objective. Article 175provides that "the Judiciary shall be separated progressively fromthe executive"."In a system of constitutional governance, guaranteeingFundamental Rights, and based on principle of trichotomy ofpowers, such as ours, the Judiciary plays a crucial role ofinterpreting and applying the law and adjudicating upon disputesarising among governments or between State and citizens orcitizens' inter se. The Judiciary is entrusted with theresponsibility for enforcement of Fundamental Rights. This callsfor an independent and vigilant system of judicial administrationso that all acts and actions leading to infringement ofFundamental Rights are nullified and the rule of law upheld inthe society.The Constitution makes it the exclusive power/responsibility ofthe Judiciary to ensure the sustenance of system of "separation ofpowers" based on checks and balances. This is a legal obligationassigned to the Judiciary. It is called upon to enforce theConstitution and safeguard the Fundamental Rights and freedomof individuals, To do so, the Judiciary has to be properlyorganized and effective and efficient enough to quickly addressand resolve public claims and grievances; and also has to bestrong and independent enough to dispense justice fairly andimpartially. It is such an efficient and independent Judiciarywhich can foster an appropriate legal and judicial environment

Const. Petition No.127 of 2012 88where there is peace and security in the society, ,safety of life,protection of property and guarantee of essential human rightsand fundamental freedoms for all individuals and groups,irrespective of any distinction or discrimination on the basis ofcast; creed, colour, culture, gender or place of origin, etc. It isindeed such a legal and judicial environment, which is conduciveto economic growth and social development."170. The exercise of suo motu powers has been dwelt at length by thesuperior Courts of Pakistan in a large number of cases. Reference mayusefully be made to the following cases: -Darshan Masih v. State (PLD 1990 SC 513 at page 544)"It is necessary at this stage to clarify certain aspects of this case.It is indeed necessary because, this being the first case of itsnature, the procedural and other elements thereof are likely indue course, to come under discussion.(i) True, a telegram, it has never been earlier made the basis bythe Supreme Court of Pakistan for action, as in this case; but,there is ample support in the Constitution for the same. UnderArticle 184(3) "Without prejudice to the provisions of Article 199,the Supreme Court shall, if it considers that a question of publicimportance with reference to the enforcement of any of theFundamental Rights conferred by Chapter I of Part II is involved,have the power to make an order of the nature mentioned in thesaid Article." The questions of procedural nature relating to theentertainment of proceedings and/or cognizance of a case underthis provision, have been dealt with in the case of Miss BenazirBhutto (PLD 1988 SC 416). The acceptance of a telegram in thiscase is covered by the said authority as also by the due extensionof the principles laid therein. Such extension/s would dependupon the fact and circumstances of each case and nature ofpublic interest involved and importance thereof. The element of"public importance" in this case now stands demonstrated by theresume (a part only) of the proceedings, given earlier.It needs to be mentioned that in our Supreme Court, thoughletters and telegrams are sent to individual Judges, but it is notconsidered as an appropriate and proper method of initiatingproceedings. Some times it leads to embarrassment. Accordinglysuch an information has to go to the Hon'ble Chief Justice forinitiating proceedings. In this case the telegram was addresseddirectly to him and he marked it to me.As to what other form/s of taking cognizance of a matter underArticle 184 (3) are possible, will depend upon the nature andimportance thereof.(ii) The "nature" of the orders which can be passed in such casesis also indicated in Article 184 (3); that is: such as can be passedunder Article 199. Even if for the time being it be assumed thatthe "nature" of the order is confined only to the Orders undersub-clause (c) of Article 199(1) and not to the other Orders under"Article 199", it would be seen that any conceivable just andproper order can be passed in a case like the present one. Theprinciple of extension involved in the relevant phrase used in Art.199(1)(c): "an order giving such directions to any person orauthority -------- as may be appropriate for the enforcement of theFundamental Rights cannot be abridged or curtailed by the law.As to how far it can be extended, will depend upon each case.It is so also because of the other provisions of the Constitution,the rules of this Court and the principles and Rules comprising

Const. Petition No.127 of 2012 89the Constitutional set up of Pakistan. For instance, "according toArticle 187 (1) this Court some times has to satisfy the dictates of"Complete Justice". What goes with it, is the subject or ampleauthority as well as of future application in given cases. Whenthis power is exercised the Court will have the necessaryadditional power to "issue such directions, orders or decrees asmay be necessary." Besides the binding effect of thejudgment/order of this Court on all other "Courts" when it"decides" a question of law or it is based upon or enunciates aprinciple of law under Article 189; another provision Art. 190,gives a similar command to all executive and judicial "authorities"throughout Pakistan": This is, so as to act "in aid of SupremeCourt". When Art. 199(1) (c) is read together with Articles, 187,189 and 190, as stated above, it becomes clear that in a fit case ofenforcement of Fundamental Rights, the Supreme Court hasjurisdiction, power and competence to pass all proper/ necessaryorders as the facts justify.(iii) The question as to whether this is a case of enforcement ofFundamental Right/s has not been raised. Everybody acceptedthat it is so. The provisions of Article 9 relating to security ofperson; Article 11 in so far as it relates to forced labour, traffic inhuman beings and child labour; Article 14 relating to dignity ofman; Article 15 ensuring freedom of movement; Article 19 relatingto freedom of trade, business or profession; and Article 25relating td equality, particularly in the protection of law and baragainst discrimination on the basis of sex, as also the safeguardsfor women and children, amongst others, are applicable to thevarious aspects of the matter. However, it is a different matterthat some Fundamental Rights are more directly attracted thanthe others and some elements involved in any one of them arerelevant while the others are meant for other situations. In view oflack of contest on this issue it is not necessary to go into adetailed discussion in this behalf. It is, however, remarked thatfor purposes of convenience of all concerned, it might benecessary to define the expression "forced labour withillustrations of its different forms"; in such a manner, so as tominimize any confusion about its real purport as also theresultant unproductive litigation. For the same purpose the otherimportant elements in these Fundamental Rights may becollected together and put in a self-contained Code. It might coverall aspects of human dignity, deprivations and misery, includingthose rights in this behalf which are ensured, in addition, asbasic human rights in Islam. This Court has in the Shariatjurisdiction dealt with some of them. There is no bar in theConstitution to the inclusion in such law of these rights, inaddition to the Fundamental Rights contained in Chapter I Part IIthereof. This comprehensive law should deal with the compulsoryeducation of the classes concerned for making them aware oftheir rights; the detection of the infringement thereof as the dutyof the State; and providing remedial mechanism also at theinstance of the State whenever the will to assert or exercise themis lacking on the part of a citizen. These aspects of theenforcement of Fundamental Rights guaranteed by theConstitution and other basic human rights ensured by Islam can,by law be made also into an independent inalienable right, withself-operating mechanism for enforcement as well.Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993Supreme Court 473 at page 805)"First, we may understand the nature of Article 184(3). Thisprovision confers power on the Supreme Court to considerquestions of public importance which are referable to theenforcement of any Fundamental Rights guaranteed by theConstitution and enumerated in Chapter 1 of Part II. This poweris without prejudice to the provisions of Article 199 which confersimilar power with certain restrictions on the High Court. The

Const. Petition No.127 of 2012 90power conferred depends upon two questions; one, that the casesought to be heard involves question of public importance andtwo, the question of public importance relates to the enforcementof Fundamental Rights. It is not every question of publicimportance which can be entertained by this Court, but suchquestion should relate to the enforcement of Fundamental Rights.This provision confers a further safety and security to theFundamental Rights conferred and guaranteed by theConstitution. This shows the importance which FundamentalRights have in the scheme of the Constitution. They cannot becurtailed or abridged and any provision of law or action takenwhich violates Fundamental Rights conferred by the Constitutionshall be void. The nature of jurisdiction and the relief which canbe granted under this Article is much wider than Article 199. Itconfers a power to make an order of the nature mentioned inArticle 199. The word 'nature' is not restrictive in meaning butextends the jurisdiction to pass an order which may not bestrictly in conformity with Article 199 but it may have the samecolour and the same scheme without any restrictions imposedunder it. Article 184 is an effective weapon provided to secure andguarantee the Fundamental Rights. It can be exercised where theFundamental Right exists and a breach has been committed or isthreatened. The attributes of Article 199 of being an aggrievedperson or of having an alternate remedy and depending upon thefacts and circumstances even laches cannot restrain the power ornon-suit a petitioner from filing a petition under Article 184 andseeking relief under it. The relief being in the nature mentioned inArticle 199 can be modified and also consequential reliefs can begranted which may ensure effective protection andimplementation of the Fundamental Rights. Even disputedquestions of facts which do not require voluminous evidence canbe looked into where Fundamental Right has been breached.However, in case where intricate disputed questions of factsinvolving voluminous evidence are involved the Court will desistfrom entering into such controversies. Primarily, the questionsinvolved are decided on admitted or prima facie established factswhich can be determined by filing affidavits evidence in support ofallegations can be taken orally in very exceptional cases wherethe breach is of a very serious nature affecting large section of thecountry and is of great general importance.Shehla Zia v. WAPDA (PLD 1994 SC 693 at page 712)"The learned counsel for the respondent has raised the objectionthat the facts of the case do not justify intervention under Article184 of the Constitution. The main thrust was that the grid stationand the transmission line are being constructed after a properstudy of the problem taking into consideration the risk factors,the economic factors and also necessity and requirement in aparticular area. It is after due- consideration that planning ismade and is being executed according to rules. After taking suchsteps possibility of health hazards is ruled out and there is noquestion of affecting property and health of a number of citizensnor any Fundamental Right is violated which may warrantinterference under Article 184. So far the first part of thecontention regarding health hazards is concerned, sufficientdiscussion has been made in the earlier part of the judgment andneed not be repeated. So far the Fundamental Rights areconcerned, one has not to go too far to find the reply.Article 9 of the Constitution provides that no person shall bedeprived of life or liberty save in accordance with law. The word'life' is very significant as it covers all facets of human existence.The word 'life' has not been defined in the Constitution but it doesnot mean nor can it be restricted only to the vegetative or animallife or mere existence from conception to death. Life includes allsuch amenities and facilities which a person born in a freecountry, is entitled to enjoy with dignity, legally and.

Const. Petition No.127 of 2012 91constitutionally. For the purposes of present controversy sufficeto say that a person is entitled to protection of law from beingexposed to hazards of electromagnetic fields or any other suchhazards which may be due to installation and construction of anygrid station, any factory, power station or such like installations.Under the common law a person whose right of easement,property or health is adversely affected by any act of omission orcommission of a third person in the neighbourhood or at a far offplace, he is entitled to seek an injunction and also claimdamages, but the Constitutional rights are higher than the legalrights conferred by law, be it municipal law or the common law.Such a danger as depicted, the possibility of which cannot beexcluded, is bound to affect a large number of people who maysuffer from it unknowingly because of lack of awareness,information and education and also because such sufferance issilent and fatal and most of the people who would be residingnear, under or at a dangerous distance of the grid station or suchinstallation do not know that they are facing any risk or are likelyto suffer by such risk. Therefore, Article 184 can be invokedbecause a large number of citizens throughout the countrycannot make such representation and may not like to make it dueto ignorance, poverty and disability. Only some conscientiouscitizens aware of their rights and the possibility of danger comeforward and this has happened so in the present case.13. According to Oxford dictionary, 'life' meant state of allfunctional activity and continual change peculiar to organisedmatter and specially to the portion of it constituting an animal orplant before death and animate existence."In Black's Law Dictionary, 'life' means "that state of animals,humans, and plants or of an organised being in which its naturalfunctions and motions are performed, or in which its organs arecapable of performing their functions. The interval between birthand death, the sum of the forces by which death is resisted, "life"protected by the Federal Constitution includes all personal rightsand their enjoyment of the faculties, acquiring useful knowledge,the right to marry, establish a home and bring up children,freedom of worship, conscience; contract, occupation, speech,assembly and press".The Constitutional Law in America provides an extensive andwide meaning to the word 'life' which includes all such rightswhich are necessary and essential for leading a free, proper,comfortable and clean life. The requirement of acquiringknowledge to establish home, the freedoms as contemplated bythe Constitution, the personal rights and their enjoyment arenothing but part of life. A person is entitled to enjoy his personalrights and to be protected from encroachments on such personalrights, freedom and liberties. Any action taken which may createhazards of life will be encroaching upon the personal rights of acitizen to enjoy the life according to law. In the present case thisis the complaint the petitioners have made. In our view the word`life' constitutionally is so wide that the danger and encroachmentcomplained of would impinge Fundamental Right of a citizen. Inthis view of the matter the petition is maintainable.Dr. Pervez Hasan, learned counsel has referred to variousjudgments of the Indian Supreme Court in which the term 'life'has been explained with reference to public interest litigation. InKharak Singh v. State of UP (AIR 1963 SC 129) for interpretingthe word 'life' used in Article 21 of the Indian Constitution,reliance was placed on the judgment of Field, J. in Munn v.Illinois (1876) 94 US 113 at page 142 where it was observed that'life' means not merely the right to the continuance of a person'sanimal existence but a right to the possession of each of hisorgans --his arms and legs etc." In Francis Corgi v. UnionTerritory of Delhi (AIR 1981 SC 746) Bhagvati, J. observed that

Const. Petition No.127 of 2012 92right to life includes right to live with human dignity and all thatgoes along with it, namely, the bare necessaries of 'life such asadequate nutrition, clothing and shelter and facilities for readingand writing in diverse form". Same view has been expressed inOlga Tellis and others v. Bombay Municipal Corporation (AIR1986 SC 180) and State of Himachal Pradesh and another v.Umed Ram Sharma and others (AIR 1986 SC 847). In the firstcase right to life under the Constitution was held to mean right tolivelihood. In the latter case the definition has been extended toinclude the "quality of life' and not mere physical existence. It wasobserved that "for residents of hilly areas, access to road is accessto life itself. Thus, apart from the wide meaning given by USCourts, the Indian Supreme Court seems to give a wider meaningwhich includes the quality of life, adequate nutrition, clothing andshelter and cannot be restricted merely to physical existence. Theword 'life' in the Constitution has not been used in a limitedmanner. A. wide meaning should be given to enable a man notonly to sustain life but to enjoy it. Under our Constitution, Article14 provides that the dignity of man and subject to law the privacyof home shall be inviolable. The fundamental right to preserveand protect the dignity of man under Article 14 is unparalleledand could be found only in few Constitutions of the world. TheConstitution guarantees dignity of man and also right to 'life'under Article 9 and if both are read together, question will arisewhether a person can be said to have dignity of man if his right tolife is below bare necessity like without proper food, clothing,shelter, education, health care, clean atmosphere and unpollutedenvironment. Such questions will arise for consideration whichcan be dilated upon in more detail in a proper proceedinginvolving such specific questions.Dr. Pervaz Hasan has also referred to several judgments of theIndian Supreme Court in which issues relating to environmentand ecological balance were raised and relief was granted as theindustrial activity causing pollution had degraded the quality oflife. In Rural Litigation and Entitlement Kendra and others v.State of UP and others (AIR 1985 SC 652) mining operationcarried out through blasting was stopped and directions wereissued to regulate it. The same case came up for furtherconsideration and concern was shown for the preservation andprotection of environment and ecology. However, considering thedefence need and for earning foreign exchange some queries wereallowed to be operated in a limited manner subject to strictcontrol and regulations. These judgments are reported in AIR1987 SC 359 and 2426 and AIR 1988 SC 2187 and AIR 1989 Sc594. In Shri Sachidanand Pandey and another v. The State ofWest Bengal and others (AIR 1987 SC 1109) part of land ofzoological garden was given to Taj Group of Hotels to build a fivestarhotel. This transaction was challenged in the High Courtwithout success. The appeal was dismissed. Taking note of thefact that society's interaction with nature is so extensive that"environmental question has assumed proportion affecting allhumanity", it was observed that: --"Obviously, if the Government is alive to the variousconsiderations requiring thought and deliberation and has arrivedat a conscious decision after taking them into account, it may notbe for this Court to interfere in the absence of mala fides. On theother hand, if relevant considerations are not borne in mind andirrelevant, considerations influence the decision, the Court mayinterfere in order to prevent a likelihood of prejudice to thepublic."In M.C. Mehta v. Union of India (AIR 1988 SC 1115) and M.C.Mehta v. Union of India (AIR 1988 SC 1037) the Court on petitionfiled by a citizen taking note of the fact that the municipal sewageand industrial effluents from tanneries were being thrown inRiver Ganges whereby it was completely polluted, the tanneries

Const. Petition No.127 of 2012 93were closed down. These judgments go a long way to show that incases where life of citizens is degraded, the quality of life, isadversely affected and health hazards are created affecting a largenumber of people, the Court in exercise of its jurisdiction underArticle 184(3) of the Constitution may grant relief to the "extent ofstopping the functioning of factories which create pollution andenvironmental degradation.Employees of the Pak. Law Commission v. Ministry of Works(1994 SCMR 1548 at page 1551)"Before dealing with the merits of the case, it seems necessary tofirst dispose of the preliminary objection raised by the learnedStanding Counsel. The learned counsel for the respondentscontended that the Court has no jurisdiction to grant the reliefunder Article 184(3) of the Constitution and the present case isnot covered by the said provision. The scope and object of Article184(3) has been comprehensively discussed in several judgmentsof this Court including Ms. Benazir Bhutto's case (PLD 1988 SC416) and Mian Muhammad Nawaz Sharif's case (PLD 1993 SC473). It is now well-settled that if there is violation ofFundamental Rights of a class of persons who collectively sufferdue to such breach and there does not seem to be any possiblerelief being granted from any quarter due to their inability to seekor obtain relief, they are entitled to file petition under Article184(3). The dispute should not be mere an individual grievance,but a collective grievance which raises questions of general publicimportance. In Benazir Bhutto's case it was observed as, follows:--"The plain language of Article 184(3) shows that it is open-ended.The Article does not say as to who shall have the right to movethe Supreme Court nor does it say by what proceedings theSupreme Court may be so moved or whether it is confined to theenforcement of the Fundamental Rights of an individual whichare infracted or extends to the enforcement of the rights of agroup or a class of persons whose rights are violated."It was further observed that "the inquiry into law and life cannot,in my view, be confined to the harrow limits of the rule of law inthe context of constitutionalism which makes a greater demandon judicial functions. Therefore, while construing Article 184(3),the interpretative approach should not be ceremoniousobservance of the rules or usages of interpretation, but regardshould be had to the object and the purpose for which this Articleis enacted, that is, this interpretative approach must receiveinspiration from the triad of provisions which saturate andinvigorate the entire Constitution, namely the ObjectivesResolution (Article 2A), the Fundamental Rights and the directiveprinciples of State Policy so as to achieve democracy, tolerance,equality and social justice according to Islam". While furtherdilating upon the provisions of the Constitution, particularlyArticles 3, 37 and 38 of the Constitution, which enshrine socioeconomicprinciples, it was observed that "these provisionsbecome in an indirect sense enforceable by law and " thus, bringabout a phenomenal change in the idea of co-relation ofFundamental Rights and directive principles of State Policy". Inthis background it was observed as follows: --"The liberties, in this context, if purposefully defined will serve toguarantee genuine freedom; freedom not only from arbitraryrestraint of authority, but also freedom from want, from povertyand destitution and from ignorance and illiteracy. That this wasthe purport of the role of the rule of law which was affirmed atLagos in 1961 in the World Peace Through Law Conference:`Adequate levels of living are essential 'for full enjoyment of

Const. Petition No.127 of 2012 94individual's freedom and rights. What is the use of freedom ofspeech to under-nourished people or of the freedom of press to anilliterate population? The rule of law must make for theestablishing of social, economic and cultural conditions whichpromote men to live in dignity and to live with aspirations'. ""The Court will be in a position, if the procedure is flexible, toextend the benefits of socio-economic change through thismedium of interpretation to all sections of the citizens."This approach is in tune with the era of progress and is meant toestablish that the Constitution is not merely an imprisonment ofthe past, but is also alive to the unfolding of the future. It wouldthus, be futile to insist on ceremonious interpretative approach toConstitutional interpretations as hitherto undertaken which onlyserved to limit the controversies between the State and theindividual without extending the benefits of the liberties and thePrinciples of Policy to all the segments of the population."It is thus clear that Article 9 of the Constitution whichguarantees life and liberty according to law is not to be construedin a restricted and pedantic manner. Life has a larger conceptwhich includes the right of enjoyment of life, maintainingadequate level of living for full enjoyment of freedom and rights.In this background the petitioners' claim to be providedaccommodation during tenure of service, which is necessary formaintaining adequate level of living, in our opinion, is covered byArticle 9. It is true that the terms and conditions of serviceperhaps do not require the respondents to provide residentialaccommodation to the petitioners, but if other Governmentservants similarly placed are being provided accommodation thereis no reason to deprive the petitioners from such relief. In thisview of the matter petition under Article 184(3) is competent."General Secretary v. Director, Industries (1994 SCMR 2061 atpage 2071)"It is well-settled that in human rights cases/public interestlitigation under Article 184(3), the procedural trappings andrestrictions, precondition of being an aggrieved person and othersimilar technical objections cannot bar the jurisdiction of theCourt. This Court has vast power under Article 184(3) toinvestigate into questions of fact as well independently byrecording evidence, appointing commission or any otherreasonable and legal manner to ascertain the correct position.Article 184(3) provides that this Court has the power to makeorder of the nature mentioned in Article 199. This is a guidelinefor exercise of jurisdiction under this provision withoutrestrictions and restraints imposed on the High Court. The factthat the order or direction should he in the nature mentioned inArticle 199, enlarges the scope of granting relief which may not beexactly as provided under Article 199, but may be similar to it orin the same nature and the relief so granted by this Court can bemoulded according to the facts and circumstances of each case."Asad Ali v. Federation of Pakistan (PLD 1998 SC 161 at 294)"It is obvious from the language of Article 184(3) that it provides adirect access to the highest judicial forum in the country for theenforcement of Fundamental Rights. It caters for an expeditiousand inexpensive remedy for the protection of the FundamentalRights from Legislative and Executive interference. It gives theCourt very wide discretion in the matter of providing anappropriate order or direction including declaratory order to suitthe exigencies of particular situation. There can be no dour thatdeclaration of Fundamental Rights is meaningless unless there isan effective machinery for the enforcement of the rights. It is the

Const. Petition No.127 of 2012 95'remedy' that makes the right real. It is often said that without'remedy' there is no right. It is for this reason that Constitutionmakers provided a long list of Fundamental Rights and themachinery for their enforcement. That machinery is the SuperiorCourts, namely, the High Courts so far as the Provincial territoryis concerned, and the Supreme Court at the apex havingjurisdiction over the entire length and breadth of Pakistan.Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823 at page1005)"It will not be out of context at this stage to observe that ourcountry has a Federal System of Government which is based ontrichotomy of power, each organ of the State is required tofunction/operate within the bounds specified in the Constitution.Though one can say that Judiciary is the weakest limb as it doesnot have the resources or powers which the Legislature or theExecutive enjoy, but it has been assigned very important anddelicate role to play, namely, to ensure that none of the organs orthe Government functionaries acts in violation of any provision ofthe Constitution or any other law and because of the abovenature of work entrusted to the Judiciary, the framers of theConstitution envisaged an independent Judiciary. However, I mayadd that the Judiciary is also constitutionally obliged to actwithin the limits of its jurisdiction as delineated by theConstitution inter alia in Article 175 thereof. Clause (2) of theabove Article provides that no Court shall have any jurisdictionsave as is or may be conferred on it by the Constitution or byunder any law. In this view of the matter, the relevantConstitutional provisions .are to be construed in a manner thatneither the Judiciary nor the Legislature transgresses its ownlimit and an equilibrium is to be maintained inter se between thethree organs of the State. However, at the same time, it shouldnot be overlooked that our Constitution has enshrined andemphasised independence of Judiciary and, therefore, therelevant provisions are to be construed in a manner which wouldensure the independence of Judiciary. We have a writtenConstitution, which is an organic document designed andintended to cater to the needs for all times to come. It is like aliving tree; it grows and blossoms with the passage of time inorder to keep pace with the growth of the country and its people.Thus the approach while interpreting a Constitutional provisionshould be dynamic, progressive and oriented with the desire tomeet the situation, which has arisen effectively. Theinterpretation cannot be narrow and pedantic but the Courts'efforts should be to construe the same broadly, so that it may beable to meet the requirements of an ever changing society. Thegeneral words cannot be construed in isolation but the same areto be construed in the context in which they are employed. Inother words, their colour and contents are derived from thecontext."Watan Party v. Federation of Pakistan (PLD 2006 SC 697 at page717)"19. Syed Sharif-ud-Din Pirzada learned counsel for thePrivatization Commission contended that to invoke jurisdiction ofthis Court under Article 184(3) of the Constitution, two conditionsare required to be fulfilled namely infringement of theFundamental Rights and absence of alternate remedy. In the casein hand no fundamental right has been infringed and under thescheme of Privatization Commission Ordinance No. LII, 2000(hereinafter referred to as "Ordinance"), two alternate remediesare available in terms of section 27 and section 28 of theOrdinance. According to learned counsel the judgment relied

Const. Petition No.127 of 2012 96upon by the petitioner in S.P. Gupta's case ibid, in thecircumstances of the instant case is not applicable becausethereafter the Indian Supreme Court in the case of BALCOEmployees Union (Regd.) v. Union of India (AIR 2002 SC 350) hasexplained the scope of the public interest litigation."20. Learned Attorney General, however, at the outset contendedthat after hearing the case at length by this Larger Bench for along period, it will not be fair on his part to say that, "no point ofpublic importance is involved in this case", therefore, he will notbe questioning locus standi of the petitioners particularly in viewof the judgments in the cases of Multiline Associates and ArdeshirCowasjee ibid."21. This Court in the referred cases and the Indian SupremeCourt in the case of S.P. Gupta ibid have laid down a rule namelythat any member of the public having sufficient interest canmaintain an action for judicial redress of public injury arisingfrom breach of the public duty or from violation of some provisionof the Constitution or the law and for enforcement of such publicduty and observance of such Constitutional provision."In the case of Benazir Bhutto ibid, it was held that only when theelement of public importance is involved, the Supreme Court canexercise its power to issue the writ while sub Article 1(c) of Article199 of the Constitution has a wider scope as there is no suchlimitation therein."In Al-Jehad Trust ibid, it has been held that, "question of locusstandi is relevant in a High Court but not in the Supreme Courtwhen the jurisdiction is invoked under Article 184(3) of theConstitution."In Malik Asad Ali ibid it was observed that under Article 184(3) ofthe Constitution, this Court is entitled to take cognizance of anymatter which involves a question of public importance withreference to the enforcement of any of the fundamental rightsconferred by Chapter I Part II of the Constitution even suo motu,without having any formal petition."In Multiline Associates ibid this Court held that requirement ofthe locus standi in the case of pro bono publico (public' interestlitigation is not so rigid) has extended scope. This principle hasbeen reiterated in Wukala Mahaz Barai Tahafuz Dastoor v.Federation of Pakistan (PLD 1998 SC 1263)."At page 739, it is further held -"Thus it is held that in exercise of the power of judicial review, thecourts normally will not interfere in pure' policy matters (unlessthe policy itself is shown to be against Constitution and the law)nor impose its own opinion in the matter. However, action takencan always be examined on the well established principles ofjudicial review."171. It is clear from the above survey of the case law that it is afundamental principle of our jurisprudence that Courts must alwaysendeavour to exercise their jurisdiction so that the rights of the peopleare guarded against arbitrary violations by the executive. This expansionof jurisdiction is for securing and safeguarding the rights of the peopleagainst the violations of the law by the executive and not for personalaggrandizement of the courts and Judges. It is to this end that the powerof judicial review was being exercised by the judiciary before 3rd

Const. Petition No.127 of 2012 97November, 2007. Indeed the power of judicial review was, and wouldcontinue to be, exercised with strict adherence governing such exercise ofpower, remaining within the sphere allotted to the judiciary by theConstitution.172. Though the exercise of suo motu powers and alleged consequentialerosion of trichotomy of powers enshrined in the Constitution was madea ground for imposing the unconstitutional and illegal Proclamation ofEmergency, which was upheld in Tikka Iqbal Muhammad Khan's case,not a single case taken up suo motu was referred to, or discussed in thedetailed reasons of the said decision - except a bald reference in Para 2(ii)of the short order - to point to any undue interference in the functioningof the other branches of the government. In any event, it was open to theFederation in all such cases to have availed the remedy provided underthe Constitution and the law against the judgments of the SupremeCourt. But, no such step was ever taken in any case whatsoever.Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka IqbalMuhammad Khan's case that the suo motu actions were destructive ofthe constitutional principle of trichotomy of power, but he himselfcontinued to take similar actions from time to time, which fact wasestablished from the record of the Supreme Court after 3rd November,2007. It was a contradiction in terms.”Excerpt from Justice Khurshid Anwar Bhinder (supra)’s case.(PLD 2010 SC 483)24. First of all we intend to deal with the prime contention ofMr. Wasim Sajjad, learned Senior Advocate Supreme Courtthat in view of the provisions as enumerated in Article 188 ofthe Constitution and Order XXVI of the Supreme Court Rulesthese C.M.As. are maintainable and the applicants cannot beknocked out on sheer technicalities which has always beenconsidered undesirable. Article 188 of the Constitution isreproduced herein below for ready reference:--"188. Review of judgments or orders by the SupremeCourt.--The Supreme Court shall have power, subject tothe provisions of any Act of (Majlis-e-Shoora (Parliament)]and of any rules made by the Supreme Court, to reviewany judgment pronounced or any order made by it".25. A bare perusal would reveal that it has been couched in avery simple and plain language hardly necessitating anyscholarly interpretation. It, inter alia, provides that theSupreme Court has power to review its judgment or ordersubject to the provisions of any Act of Parliament and any rulemade by the Supreme Court itself. (The contention whetherSupreme Court Rules, 1980 are subservient to the Constitutionhave been discussed in later part of this judgment) It is to benoted that no Act of Parliament whatsoever has beenpromulgated and thus it can reasonably be inferred thatlegislature does not want to restrict or impose any condition onthe powers conferred upon this Court under Article 188 of theConstitution. In fact the words "subject to the provisions of anyAct of (Majlis-e-Shoora/Parliament) and of any rules made bythe Supreme Court" are indicative of the fact that indirectly thepowers so conferred have been enhanced and there wasabsolutely no intention for curtailment of such powers

Const. Petition No.127 of 2012 98conferred upon this Court under Article 188 of theConstitution. The point under discussion has been examinedby this Court in case titled Evacuee Trust Property Board v.Hameed Elahi (PLD 1981 SC 108) with the followingobservations:-"6. Nothing in these Rules shall be deemed to limit orotherwise affect the inherent powers of the Court to makesuch orders as may be necessary for the ends of justiceor to prevent abuse of the process of the Court. Now, aswe observed, "a litigant should not suffer on account ofthe mistakes or errors of the Court, and the corollary ofthis principle is that the Court should have the inherentpower to correct its errors. The said rule only clarifies interms that this Court has the inherent power to makesuch orders as may be necessary for the ends of justiceor to prevent abuse of the process of the Court." There isno ambiguity about these words, and if the respondent'splea be true, he has brought his case within the meaningof the said rule.Additionally, the said rule was not framed for first timeby this Court. It is almost verbatim reproduction ofsection 151 of the Civil Procedure Code and of section561-A of the Criminal Procedure Code, and these twosections (which in turn are in pari materia with eachother) have been part of our procedural laws forgenerations, so that there is no ambiguity about of ourprocedural laws for generations, so that there is noambiguity about them, because they have beenrepeatedly construed by the superior Courts. Thus, forexample, taking first, section 151 of the Civil ProcedureCode, the Indian Supreme Court held in KeshardeoChamaria v. Radha Kissen Chamaria and others (AIR1953 SC 23) that a Court could in the exercise of itspowers under section 151 re-call an order passed by itwithout notice to the parties concerned. Next, as tosection 561-A of the Criminal Procedure Code this Courtheld in Gulzar Hassan Shah v. Ghulam Murtaza and 4others (PLD 1970 SC 335) that a Court was competentunder section 561-A to re-call an order passed by itwithout notice to the parties concerned. However, as thisjudgment was pronounced long after the rules of thisCourt had been framed in 1956, the case-law on section561-A before 1950 would be more relevant. We say 1950and not 1956, because the said rule was originallyenacted as rule 6 of Order LIII of the Federal Court Rulesof 1950. And on the repeal of those rules of 1956, thesame provision was reenacted in the present rules as thesaid rule."26. We are conscious of the fact the principles of C.P.C. alsoneed to be examined and thus the provisions as enumerated inOrder XLVII, Rule 1 of C.P.C. would require consideration quaits application which is reproduced herein below for readyreference:--"1. Application for review of judgment.--(1) Any personconsidering himself aggrieved(a) by a decree or order from which an appeal is allowed,but from which no appeal has been preferred,(b) by a decree or order from which no appeal is allowed,or(c) by a decision on a reference from a Court of Small

Const. Petition No.127 of 2012 99Causes,and who, from the discovery of new and importantmatter or evidence which, after the exercise of duediligence, was not within his knowledge or could not beproduced by him at the time when the decree waspassed or order made, or on account of some mistake orerror apparent on the face of the record, or for any othersufficient reason, desires to obtain a review of thedecree passed or order made against him, may apply fora review of judgment to the Court which passed thedecree or made the order.(2) A party who is not appealing from a decree or ordermay apply for a review of judgment notwithstanding thependency of an appeal by some other party exceptwhere the ground of such appeal is common to theapplicant and the appellant, or when, being respondent,he can present to the Appellate Court the case on whichhe applies for the review."27. A bare perusal would reveal that the salient features ofOrder XLVII, C.P.C. are as under :--(i)(ii)discovery of new and important matter orevidence which after the exercise of duediligence, was not within his knowledge or couldnot be produced by the petitioner at the timewhen the decree was passed or order made; oron account of some mistake or error apparent onthe face of the record; or(iii) for any other sufficient reason. [2003 CLC 1355)28. We have examined the salient features and grounds asenumerated in Order XLVII, Rule 1. C.P.C. and we are of theview in so far as these C.M.As. are concerned that neither thereis discovery of new important fact nor some mistake or errorhas been pointed out and besides that no sufficient reasoninghas been advanced on the basis whereof the principle asenunciated in Order XLVII, Rule 1, C.P.C. can be madeapplicable. It may not be out of place to mention here that"sufficient cause" is not susceptible of an exact definition andno hard and fast rule can be laid down to cover all possiblecases. Each case must be judged upon its merits and itspeculiar circumstances. The words "sufficient cause"mentioned in O. XLVII, R.1 of the Code do not mean any andevery cause but it means any reason sufficient on ground atleast analogous to those stated in the rule. The view that the"sufficient grounds" need not necessarily be construed ejusdemgeneris with the words preceding cannot be accepted as layingdown the correct law." Suruj Mian v. Asst. Manager, Govt.Acquired Estate (PLD 1960 Dacca 1045). None of the groundsurged by the petitioners attracted the provisions asenumerated in Order XLVII, C.P.C. and thus C.M.As cannot bedeclared competent. A similar proposition was examined inYusuf Ali v. State (PLD 1971 SC 508) with the followingobservations:--"The right of review granted by Article 62 of theConstitution of 1962 is subject not only to the provisionsof any Act of the Central Legislature but also to theprovisions of any rules made by the Supreme Court andthe Rules of the Court specifically provide by Order XXVIthat "subject to the law and practice of the Court, theCourt may review its judgment or order in a civil

Const. Petition No.127 of 2012 100proceeding on grounds similar to those mentioned inOrder XLVII, rule 1 of the Code and in a criminalproceeding on the ground of an error apparent on the faceof the record". Where none of the grounds urged by thepetitioner come within the ambit of this rule no validground could be said to have been made out for thereview of the judgment." (Emphasis provided)29. It may be mentioned that the words "any other sufficientreasons" used in Order XLVII, Rule (1)(c), C.P.C. means areason sufficient on grounds at least analogous to thosementioned in a categoric manner in clauses (a),. (b), and (c) ofRule 1 of Order XLVII, C.P.C. "A review, as has been pointedout by this Court in the case of Lt. Col. Nawabzada MohammadAmir Khan v. The Controller of Estate Duty Government ofPakistan, Karachi and another (PLD 1962 SC 335) is by its verynature not an appeal or a rehearing merely on the ground thatone party or another conceives himself to be dissatisfied withthe decision of this Court. It can only be granted for somesufficient cause akin to those mentioned in Order XLVII, rule 1of the Code of Civil Procedure the provisions whereofincorporate the principles upon which a review can begranted." In this regard we are fortified by the dictum laiddown in the following authorities:(i) Chhaju v. Neki (AIR 1922 PC 112),(ii)Iftikhar Hussain Shah v. Azad Govt. of The Stateof J & K (PLD 1984 SC AJ&K 111),(iii) Muhammad Ghaffar v. State (1969 SCMR 10)30. In our view decision once given cannot be reviewed subjectto certain legal exceptions pursuant to the provisions asenumerated in Order XLVII, Rule 1, C.P.C., scope whereof canneither be enlarged nor it can be farfetched in such a manneras argued by the learned Advocate Supreme Courts for thepetitioners in view of the language as employed in Order XLVII,Rule 1, C.P.C. its application would be only up to that limitedextent and it cannot be unlimited. As mentioned above, thepowers of review are not wide but definite and limited innature. "It has to be confined to the four corners of the relevantrules or the phrase or for any other sufficient reason even thereview jurisdiction as visualized must be traced to Order XLVIIwhich contains the prescribed conditions and limitations interms of the requirement of the section and more so power toreview is not an inherent power. On a proper consideration itwill be found that the principles underlying the limitationsmentioned in Order XLVII, rule 1, Civil Procedure Code, areimplicit in the nature of review jurisdiction and cannot beequated to that of a technical obstruction." In this regard thecase law as enunciated in the following cases can be referred:--Jalal Din v. Mohd. Akram Khan (PLD 1963 (WP) Lah.596), Prahlad Krishna Kurne AIR 1951 Bom. 25, HajeeSuleman v. Custodian Evacuee Property (AIR 1955Madhya Bharat 108, Rukan Din and others v. Hafiz-ud-Din and another (PLD 1962 Lah. 161), Mohd. AmirKhan v. Controller of Estate Duty PLD (1962 SC 335)Abdul Jabbar v. Collector of Central Excise and LandCustoms Review Application No.15 of 1959 (Quetta)unreported considered.31. Mr. Justice Pir Hamid (as he then was) while discussingthe provisions as enumerated in Order XLVII; Rule 1; C.P.C.has opined that "I for my part would be inclined to hold that areview is by its very nature not an appeal or a rehearing merely

Const. Petition No.127 of 2012 101on the ground that one party or another conceives himself tobe dissatisfied with the decision of this Court, but that itshould only be granted for some sufficient cause akin to thosementioned in Order XLVII, rule 1 of the Code of CivilProcedure, the provisions whereof incorporate the principlesupon which a review was usually granted by Courts of law inEngland. The indulgence by way review may no doubt begranted to prevent remediable injustice being done by a courtof last resort as where by some inadvertence an importantstatutory provision has escape notice which, if it had beennoticed, might materially have affected the judgment of theCourt but in no case should a rehearing be allowed uponmerits." (Emphasis provided). (Muhammad Amir Khan v.Controller of Estate Duty PLD 1962 SC 335, Young v. BristolAeroplane Company Limited (1944) 1 K B 718, Gower v. Gower(1950) 1 A E R 804 distinguished).32. Mr. Justice Ghulam Mujaddid Mirza (as he then was) hasalso examined the provisions as enumerated in section 114,C.P.C. and Order XLVII, Rule 1, C.P.C. in the light of dictumlaid down in H. M. Saya & Co. Karachi v. Wazir Ali IndustriesLtd. Karachi and another (PLD 1969 SC 65) as under:--"2. I called upon Mr. K. H. Khurshid, learned counsel forthe petitioners to first convince me as to how this petitionwas competent when the petitioners were not a party tothe writ proceedings. Learned counsel submitted that asthe petitioners had been adversely affected by the orderof this Court dated the 5th of December 1973, they are,therefore, aggrieved persons and hence have a locusstandi to file this petition in the present form. Learnedcounsel relied on PLD 1971 SC 130, in order to prove thatthe petitioners were aggrieved persons but in my viewthis authority would not be of much help to him becausein this case the question examined was as to who wouldbe the person aggrieved within the ambit of Article 98 ofthe late Constitution of Islamic Republic of Pakistanwhereas in the instant case the petitioners have to bringtheir case within the purview of Order XLVII, rule 1,C.P.C. Learned counsel tried to avail of section 114,C.P.C. which deals with the power of review and arguedthat the words "any person considering himselfaggrieved" were wide enough to include even thosepersons who initially were not a party to the proceedingsbut at a later stage were affected by an order adverse totheir interest. My attention was invited to Order XLVII,rule 1, C.P.C. and it was submitted that even in thisprovision the above mentioned words have beenrepeated, and the learned counsel, therefore, emphasizedthat these words would cover the case of even astranger, the only essential requisite being that he mustconsider himself to be an aggrieved person, the test forwhich, according to the learned counsel would besubjective. Reliance was also placed on H.M. Saya & Co.,Karachi v. Wazir Ali Industries Ltd. Karachi and another(PLD 1969 SC 65) with special reference to the followingobservations:There can be no dispute that the only party which wasadversely affected by the order of ad interim injunctionwas respondent No.1. We are satisfied that Saya & Co.,deliberately omitted to make them parties with theintention of avoiding a contest. They knew fully well thatthe relief sought were really directed against Wazir AliIndustries Limited, and their bankers. A stranger to asuit or a proceeding is not prohibited by the Code of CivilProcedure from filing an appeal from an order passedtherein. It is true that there is no express provision

Const. Petition No.127 of 2012 102permitting such party to prefer an appeal against such anorder. This omission, however, cannot be understood toamount to prohibition. The Court ought not to act on theprinciple that every procedure is to be taken asprohibited unless it is expressly provided for. To givesuch a meaning to the omission would result in graveinjustice. The facts of this case are clear example inpoint. The Court should proceed on the principle thatevery procedure which furthers administration of justiceis permissible even if there is no express provisionpermitting the same. Section 96 of the Civil ProcedureCode deals with appeals from decrees and section 104deals with appeals from orders. These provisions do notin terms say who is entitled to prefer an appeal. TheCode, however, lays down that it is the decree or theorder that has to be appealed against. If the decree ororder appealed from adversely affects a person he shouldbe permitted to challenge the same in appeal even if hewas not made a party to the original suit for proceeding."and it was argued that the principle laid down in thiscase was fully applicable to the present petition andhence not only that the petition was competent but alsothat the order dated the 5th of December 1973, of thisCourt deserves to be reviewed.3. I have very carefully gone through this decision andfind that the law laid down by the Supreme Court is onlywith regard to the appellate proceedings, whereas thescope of review is much different and the reviewjurisdiction is substantially and materially different tothe appellate jurisdiction because it can be only utilizedon the specific grounds mentioned in Order XLVII, rule 1,C.P.C. (Emphasis provided). In this connection it would beworthwhile to reproduce in extenso rule 1 of Order XLVII,C.P.C. which is to the following effect:-"(1) Any person considering himself aggrieved--(a) by a decree or order from which an appeal is allowed,but from which no appeal has been preferred,(b) by a decree or order from which no appeal is allowed, or(c) by a decision on a reference from a Court of Small Causes,and who, from the discovery of new and important matteror evidence which, after the exercise of due diligence,was not within his knowledge or could not be producedby him at the time when the decree was passed or ordermade, on account of some mistake or error apparent onthe face of the record, or for any other sufficient reason,desires to obtain a review of the decree passed or ordermade against him may apply for a review of judgment tothe Court which passed the decree or made the order."The important words to be noted in this connection are"desires to obtain a review of the decree passed or ordermade". These words leave no room for doubt that theremedy of review could be availed of only by a personwho initially was a party to the proceedings in whicheither a decree had been passed or an order had beenmade against him, otherwise the very essence of thegrounds on which a review would be competent, wouldbe rendered ineffective. It is, therefore, obvious that astranger to the proceedings would not be permitted toavail of the grounds on which a review petition would be

Const. Petition No.127 of 2012 103competent. I, therefore, do not agree with the contentionof the learned counsel that a wider interpretation of thewords "any person considering himself aggrieved" wouldbe the only proper and reasonable interpretation. On theother hand, I find that these words would have to beread and interpreted in the light of the main rule andwhen so done in my view their operation would berestricted and would cover the case of only those personswho initially were party to the proceedings." (Emphasisprovided). (Qaim Hussain v. Anjuman Islamia PLD 1974Lah. 346).64. From the above discussion it will be seen that dependingupon the peculiar facts and circumstances of each case, whichenables the Court to form its opinion, all the above discussedjurisdictions conferred to the apex Court under the scheme of theConstitution are closely interlinked, rather, overlapping in someareas, therefore, without entering into the intricacies of suchtechnicalities, this Court is competent to pass any order to fosterthe cause of justice; eliminating the chances of perpetuatingillegality and to save an aggrieved party from being renderedremedy less. If any further case law is needed to fortify this view,reference can also be made to number of other cases referred bythe learned ASC’s in their respective arguments and discussed inthe earlier part of this judgment as well as the cases of SyedWajihul Hassan Zaidi v. Government of the Punjab and others(PLD 2004 SC 801) and Mrs. Shahida Zahir Abbasi v. President ofPakistan (PLD 1996 SC 632), which further lays down as under:-Excerpt from the Wajihul Hassan Zaidi (supra)’s case.17. Admittedly, we are not Sitting in appeal over the judgmentrendered by a Full Bench of this Court and the scope of review isvery restricted within the parameters laid down by this Court inAbdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 690),Arif Shah v.; Abdul Hakeem Qureshi (PLD 1991 SC 905) andAbdul Ghaffar Abdul Rehman v. Asghar Ali (PLD 1998 SC 363).We are of the considered view that even if the view taken by thisCourt in the decision of the appeal be erroneous, it does notwarrant revisiting by this Bench in the exercise of reviewjurisdiction, which can only be exercised when an error or

Const. Petition No.127 of 2012 104mistake is manifestly shown to float on the face of record, whichis patent and if allowed to remain intact would perpetuateillegality and gross injustice. Basic object behind the confermentof power of judicial review on superior Courts essentially is tofoster justice and eliminate chances of perpetuating illegality.Principal aim and spirit underlying judicial review of orderspassed or actions taken by executive or quasi-judicial forums isto respect law and to enforce primacy of the Constitution and thelaw. There can be no cavil with the proposition that writjurisdiction is completely discretionary in nature and invocable inorder to meet blatant illegalities, total lack of jurisdiction,unwarranted exercise of authority otherwise not conferred by lawor preventing retention of ill-gotten gains. Discretion exercisedwithin the contemplation of Articles 185 & 187 of theConstitution by this Court is a too wide in nature and stands at ahigher pedestal. It is obligatory for this Court to ensure that apartfrom legal requirements broad equitable principles of law are notinfringed so that complete justice can be dispensed with ifequitable situation demands and legal formulations do not takethe controversy to its logical end. This Court would be grosslyfailing in duty if it over-looks equitable considerations and altersthe final verdict in the exercise of its extraordinary jurisdiction.”Excerpt from Mrs. Shahida Zahir Abbasi (supra)’s case.From above-quoted passages, it is quite clear that whethera particular case involved the element of "public importance" is aquestion which is to be determined by this Court with reference tothe facts and circumstances of each case. There is no hard andfast rule that an individual grievance can never be treated as amatter involving question of public importance. Similarly itcannot be said that a case brought by, a large number of peopleshould always be considered as a case of "public importance"because a large body of persons is interested in the case. Thepublic importance of a case is determined as observed by thisCourt in Manzoor Ellahi's case, supra, by decision on questionsaffecting the legal rights and liberties of the people at large, eventhough the individual who may have brought the matter beforethe Court is of no significance. Similarly, it was observed inBenazir Bhutto's case, supra, that public importance should beviewed with reference to freedom and liberties guaranteed underConstitution, their protection and invasion of these rights in amanner which raises a serious question regarding theirenforcement, irrespective of the fact whether such infraction ofright, freedom or liberty is alleged by an individual or a group ofindividuals. In the case of Employees of Pakistan LawCommission v. Ministry of Works 1994 SCMR 1548, Saleem

Const. Petition No.127 of 2012 105Akhtar, J., relying on the observations in Benazir Bhutto's case,supra, on the scope of Article 184(3) of the Constitution observedas follows:--"In Benazir Bhutto's case it was observed as follows:The plain language of Article 184(3) shows that it isopen-ended. The Article does not say as to who shall havethe right to move the Supreme Court nor does it say bywhat proceedings the Supreme Court may be so moved. orwhether it is defined to the enforcement of the FundamentalRights of an individual which are infracted or extends to theenforcement of the rights of a group or a class of personswhose rights are violated. "……. ………………………………………………………………..…………………………………………………………………………………….From the above discussion, it is quit clear that this Courtwhile construing the provisions of Article 184(3) of theConstitution did not follow the conventional interpretativeapproach based on technicalities and ceremonious observance ofrule or usage of interpretation. Keeping in view the avowed spiritof the provision, this Court, preferred the interpretative approachwhich received inspiration from the triad of provision whichsaturated and invigorated the entire Constitution, namely, theObjectives Resolution (Article 2A), the Fundamental Rights andDirective Principles of State Policy so as to achieve, democracy,tolerance, equality and social justice according to Islam. Thisliberal interpretative approach opened the door of "access tojustice to all".65. As a result of above discussion with detailed reference tosome celebrated judgments of this Court, we have no hesitation tohold that this petition is very much competent and maintainable,thus, no exception could be taken to its maintainability on any ofthe grounds urged by the learned Sr.ASCs/ASCs and the retiredjudges of the High Court.66. To proceed further, as the whole controversy in thepresent proceedings originates and revolves around the “right topension” of honourable retired judges of the High Court, beforeexamining the above noted point No.2, as a next step it will beappropriate rather useful to dilate upon the true connotation andconcept of pension, which has undergone radical changes in the

Const. Petition No.127 of 2012 106last century. In this regard, it will be useful to reproducehereunder few definitions of word “pension” from someauthoritative books/dictionaries and thereafter to reproduce somediscussion from the judgment in the case of I.A Sharwani (supra),which is quite pertinent on this subject.Black’s Law Dictionary.“Pension. Retirement benefit paid regularly (normally,monthly), with the amount of such based generally onlength of employment and amount of wages or salary ofpensioner. Deferred compensation for services rendered.”In the New Encyclopedia Britannica Vol.9, 15 th Editionat p.266 the following is laid down for the term“Pension”:-“Pension: Series of periodic money payments made to aperson who retires from employment because of age,disability, or the completion of an agreed span of service.The payments generally continue for the remainder of thenatural life of the recipient, and sometimes to a widow orother survivor. Military pensions have existed for manycenturies; private pension plans originated in Europeduring the 19th century. Eligibility for and amounts ofbenefits are based on a variety of factors, including lengthof employment, age, earnings, and, in some cases, pastcontributions.”In Law Laxican defined “pension” as follows:-Pension defined, Act 21, 1886, S.2-241C803 a periodicalpayment made by a Government, company or, anyemployer or labour in consideration of past services or therelinquishment of rights; claims or emoluments; regularpayments to persons in order that they may maintainthemselves. Art.112(3)(d)(i) Const.I.A Sharwani’s case (supra).“15. Having dealt with the above legal preliminary objections,we may now revert to the merits of the case. Before dealing withthe respective contentions of the learned counsel for the parties,we may first refer to the definition and raison d'etre of the term"pension" and the nature of right in respect thereof. In this

Const. Petition No.127 of 2012 107regard, reference may be made to Encyclopaedia Britannica,Volume 17, 1963 Edition, page 488, Corpus Juris Secundum,Volume 67, pages 763 and 764, Corpus Juris Secundum, Volume70, page 423, American Jurisprudence, Volume 40, pages 980and 981, and para. 29 from the judgment in the case of D.S.Nakara and others v. Union of India (supra), which read asfollows:--Extract from Encyclopaedia Britannica Vol. 17 1963Edition Page 488.---"Pensions are periodic payments,usually for the natural life of a person who retires becauseof age or disability. Sometimes the term refers to, periodicpayments to wives, widows or children of a primary ordeceased person or pensioner; occasionally, a pension willbe conveyed solely as an honour for conspicuous serviceor valour. Pensions are provided by Government in threeguises: (1) as compensation or recompense to war veteransand families for old age or for disability or death, usuallyfrom service causes; (2) as disability or old age retirementbenefits for civilian employees of government; (3) as socialsecurity payments for the aged, disabled or deceasedcitizenry based on past employment history or subject tocurrent evidence of need. Pensions are also provided bymany non-Governmental employers as a means ofprotecting workers retiring for age or disability and forrelieving the payroll of superannuated personnel. They aresometimes provided by union-management welfare funds,associations or trusteeships. Only rarely do employees ingroups, associations or unions undertake their ownpension programme without employer or Governmentassistance."Extract from Corpus Juris Secundum. Vol. 67. pages763-764.---"Except as limited by the Constitution theestablishment of a pension system is within the scope ofthe legislative power. The granting of pensions to publicofficers or public employees serves the public purpose,and is designed to induce competent persons to enter andremain in the public' service or employment, and toencourage the retirement from public service of those whohave become incapacitated from performing their duties aswell as they might be performed by younger or morevigorous persons. It has also been stated that a pensionsystem is intended to promote efficient, continued andfaithful service to the employer and economic security tothe employees and their dependents, by an arrangement

Const. Petition No.127 of 2012 108under which, by fulfilment of specified eligibilityrequirements, pensions become property of the individualas a matter of right upon the termination of publicservice."Extract from Corpus Juris Secundum. Vol. 70, page423.---"A pension is a periodical allowance of moneygranted by the Government in consideration or recognitionof meritorious past services, or of loss or injury sustainedin the public service. A pension is mainly designed toassist the pensioner in providing for his daily wants, andit presupposes the continued life of the recipient."Extract from American Jurisprudence, Vo1.40, pages 980and 981.---"The right to a pension depends upon statutoryprovisions therefore, and the existence of such right inparticular instances is determinable primarily from theterms of the statute under which the right or privilege isgranted. The right to a pension may be made to dependupon such conditions. as the grantor may see fit toprescribe. Thus, it has been held that it may be provided,in a general Pension Act, that any person who accepts thebenefits thereof shall forfeit his right to a special pensionpreviously granted."Para. 29 from the judgment in the case of D.S. Nakaraand others v. Union of India (supra).---"Summing-up itcan be said with confidence that pension is not onlycompensation for loyal service rendered in the past, butpension also has a broader significance, in that it is ameasure of socio-economic justice which inheres economicsecurity in the fall of life when physical and mentalprowess is ebbing corresponding to aging process and,therefore, one is required to fall back on savings. Onesuch saving in kind is when you give your best in the heyday of life to your employer, in days of invalidity,economic security by way of periodical payment isassured. The term has been judicially defined as a statedallowances or stipend made in consideration of pastservice or a surrender of rights or emoluments to oneretired from service. Thus the pension payable to aGovernment employee is earned by rendering long andefficient service and therefore can be said to be a deferredportion of the compensation for service rendered. In onesentence one can say that the most practical raison d'etrefor pension is the inability to provide for oneself due to

Const. Petition No.127 of 2012 109old-age. One may live and avoid unemployment but notsenility and penury if there is nothing to fall back upon."16. It seems that there are various kinds of pension schemeswhich are obtaining in various countries of the world. However,the same can be divided into two broad categories, namely, (i)Government Pension Schemes; (ii) Non-Government PensionSchemes. Each of the above category can be sub-divided into anumber of sub-categories according to the object for which aparticular scheme is designed. In the instant case, we are mainlyconcerned with the pension schemes meant for publicemployees/public officers, who are known in the Sub-Continentas civil servants.A pension is intended to assist a retired civil servant inproviding for his daily wants so long he is alive in consideration ofhis past services, though recently the above benefit has beenextended inter alia in Pakistan to the widows and the dependentchildren of the deceased civil servants. The raison d'etre forpension seems to be inability to provide for oneself due to old-age.The right and extent to claim pension depends upon the terms ofthe relevant statute under which it has been granted.17. In the Sub-Continent during the British Rule since it wasconsidered that the salary which a -civil servant drew was abounty, the same view was held in respect of the pension.However, the above controversy has been settled inasmuch asthis Court in more than one case; has held that the concept thatthe salary which a civil servant drew was a bounty, was no longerthe law of the country. Reference may be made to the case of TheState of Pakistan and another v. Mehrajuddin (P L D 1959 S C(Pak.) 147). As regards the right to claim pension, the controversyhas been set to rest by this Court inter alia in the case of TheGovernment of N-W.F.P. through The Secretary to theGovernment of N.-W.F.P.. Communication and WorksDepartments, Peshawar v. Muhammad Said Khan and another (PL D 1973 S C 514), wherein the following view has been taken:--"It must now be taken as well-settled that a person whoenters Government service has also something to lookforward after his retirement, to what are called retirementbenefits, grant of pension being the most valuable of suchbenefits. It is equally well-settled that pension like salary ofa civil servant is no longer 'a bounty but is a right acquiredafter putting in satisfactory service for the prescribedminimum period. A fortiori, it cannot be reduced or refusedarbitrarily except to the extent and in the manner provided

Const. Petition No.127 of 2012 110in the relevant rules. Conversely full pension admissibleunder the rules is not to be given as a matter of courseunless the service rendered has been duly approved. (SeeArticle 470, Civil Service Regulations). It is equallywell-settled that if the service has not been thoroughlysatisfactory, the authority sanctioning the pension isempowered under the said Article to make such reductionin the amount as it may deem proper. This power ishowever exercisable only before pension is actuallysanctioned."The same view has been taken by the Indian Supreme Court inthe case of Deokinandan Prasad v. State of Bihar and others (AIR1971 SC 1409) and the case of State of Punjab and another v.Iqbal Singh (AIR 1976 SC 667).[Also see: D.S. Nakara and others v. Unionof India (AIR 1983 SC130) and Kerala State Road Transport Cooperation v. K.OVarghese and others (AIR 2003 SC 3966)]67. The gist of the discussion made in the above cited caseson the subject of pension is that it is a right which the Governmentservants or employees in different positions and different capacitiesearn in terms of the relevant statutory provisions applicable totheir case, mostly depending upon their length of service. In anycase it is not a State bounty which can be awarded to anyindividual outside the scope of the applicable statute, as a favour.68. After the above discussion, when we move forward todilate upon, discuss and adjudicate the second point relating tothe interpretation of Article 205, read with Fifth Schedule to theConstitution and applicable President’s Order in the light ofsubmissions made before us and the law, we deem it appropriateto firstly, discuss the concept of interpretation of statutes,particularly the constitutional provisions; briefly trace out thehistory of legislation in this context; reproduce hereunder therelevant statutory provisions commencing from Government ofIndia Act, 1935; various Orders/President’s Orders relating theretoin sequence, and also to give a brief resume/ comment on the

Const. Petition No.127 of 2012 111statutory provisions of some other countries regulating pensionarybenefits of the honourable retired judges of the superior Courts inthose countries, with specific reference to the requirement ofminimum length of service to earn the right to pension, as they aresomewhat “pari materia” to the constitutional provisions and thePresident’s Order in vogue in our country.69. As regards the concept of interpretation, we find that it isa method by which the true sense or meaning of the word is tracedout and understood. The process by which a Judge or a person ora lawyer associated in the search of meaning of a statute,constructs from the word of statute book a meaning, which heeither believes to be intent of the legislature or which he proposesto attribute to it, is called “interpretation”. Salmond in his famousbook on the Interpretation of Statutes, describes interpretation orconstruction as the process by which Courts seek to ascertain themeaning of the legislature through the medium of authoritativeforms in which it is expressed. Other renowned jurists and legalexperts have designated the principle of interpretation of statute as‘an art of proliferating a purpose’, or a science by itself and thepurpose behind interpretation is to seek the intention of its lawmaker. In the same context, when we revert to some wellrecognized principles of interpretation of statute, we find thefollowing basic principles outlined for this purpose.“a. That the entire Constitution has to be read as anintegrated whole.b. No one particular provision should be so construed as todestroying the other, but each sustaining the otherprovision. This is the rule of harmony, rule ofcompleteness and exhaustiveness.c. Interpretation to be consistent with the Injunctions ofIslam.

Const. Petition No.127 of 2012 112d. It must always be borne in mind that it is only where thewords are not clear, or the provision in question isambiguous, that is, it is fairly and equally open to diversemeanings, that the duty of interpretation arises.e. Intention to be gathered from the language of theenactment, otherwise known as the ‘plain meaning rule’.f. It is elementary rule of construction that it is to beassumed that the words and phrases of technicallegislation are used in their technical meaning, if theyhave acquired one, and otherwise in their ordinarymeaning. Critical and subtle distinctions are to be avoidedand the obvious and popular meaning of the languageshould, as a general rule, be followed.g. It is a cardinal rule of construction of statutes that nowords are to be added or omitted or treated as surplusageor redundant.h. That the words of written Constitution prevail over allunwritten conventions, precedents and practices to thecontrary.i. Legislative history is relevant for interpretingconstitutional provisions.”70. Having discussed above the concept of “Pension” and“interpretation of statutes” , for ready reference, now we reproducein sequence the relevant constitutional provisions, President’sOrders etc as under:-Government of India Act, 1935.“Salaries, &c.of judges221. The judges of the several High Courtsshall. be entitled to such salaries and allowances,including allowances for expenses in respect ofequipment and travelling upon appointment, andto such rights in respect of leave and pensions, asmay from time to time be fixed by His Majesty inCouncil:Provided that neither the salary of a judge,nor his rights in respect of leave of absence orpension, shall be varied to his disadvantage afterhis appointment.”THE HIGH COURT JUDGES ORDER, 1937“…………………………………………………………………………………………..AND WHEREAS by section two hundred and twenty-one ofthe Act it is provided that the Judges of the several High Courts

Const. Petition No.127 of 2012 113shall be entitled to such salaries and allowances, includingallowances for expenses in respect of equipment and travellingupon appointment, and to such rights in respect of leave andpensions, as may from time to time be fixed by His Majesty inCouncil:...PENSIONS17.—(1) Subject to the provisions of this Order, a pension shall bepayable to a Judge on his retirement if, but only if, either –(a)(b)(c)he has completed not less than 12 years’ servicefor pension; orhe has completed not less than 7 years’ service forpension and has attained the age of sixty; orhe has completed not less than 7 years’ service forpension and his retirement is medically certified tobe necessitated by ill-health.(2) the President may for special reasons direct that anyperiod not exceeding three months shall be added to a Judge’sservice for pension.Provided that a period so added shall be disregarded incalculating any additional pension under Part I or Part II of theThird Schedule to this Order.”THE CONSTITUTION OF INDIA, 1949(Pre 54 th Amendment)“221. Salaries, etc., of Judges.—(1) There shall be paid to theJudges of each High Court such salaries as are specified in theSecond Schedule.(2) Every Judge shall be entitled to such allowancesand to such rights in respect of leave of absence and pension asmay from time to time be determined by or under law made byParliament and, until so determined, to such allowances andrights as are specified in the Second Schedule:Provided that neither the allowances of a Judge nor hisrights in respect of leave of absence or pension shall be varied tohis disadvantage after his appointment.”(Post 54 th Amendment)“221. Salaries, etc., of Judges.—(1) There shall be paid tothe Judges of each High Court such salaries as may bedetermined by Parliament by law and, until provision in that

Const. Petition No.127 of 2012 114behalf is so made, such salaries as are specified in the SecondSchedule.(2) Every Judge shall be entitled to such allowancesand to such rights in respect of leave of absence and pension asmay from time to time be determined by or under law made byParliament and, until so determined, to such allowances andrights as are specified in the Second Schedule:Provided that neither the allowances of a Judge nor hisrights in respect of leave of absence or pension shall be varied tohis disadvantage after his appointment.“Salaries”.—The salaries received by the High Court/theSupreme Court Judges are “salaries” and are taxable under theIncome Tax Act, though the Judges are Constitutionalfunctionaries having no employer.”The Constitution of the Islamic Republic of Pakistan, 1956.“175.—(1) The remuneration and other conditions of service of aJudge of the Supreme Court or of a High Court shall not be variedto his disadvantage during his tenure of office.(2) Subject to Article 151, the conduct of a Judge of theSupreme Court or of a Judge of a High Court shall not bediscussed in the National or a Provincial Assembly.176. …….177. Until other provisions in that behalf are made by Act ofParliament, the provisions of the Third Schedule shall apply inrelation to the Supreme Court and High Courts in respect ofmatters specified therein.THIRD SCHEDULE(Articles 159 and 177)The JudiciaryPART ITHE SUPREME COURT1. Salary and allowances of Judges. – ………._______________________PART IITHE HIGH COURTS4. Salaries of Judges.—(1) There shall be paid to the ChiefJustice of a High Court a salary of Rs.5,000 per mensem, and toevery other Judge of that Court a salary of Rs.4,000 per mensem.

Const. Petition No.127 of 2012 115(2) Every Judge of a High Court shall be entitled to suchother privileges and allowances, including allowances forexpenses in respect of equipment and travelling upon firstappointment, and to such rights in respect of leave of absenceand pensions as may be determined by the President, and untilso determined to the allowances, privileges and rights whichimmediately before the Constitution Day, were admissible to theJudges of the High Court, and the provisions of the Governmentof India (High Court Judges) Order, 1937, shall, subject to theprovisions of the Constitution, apply.”The Constitution of the Islamic Republic of Pakistan, 1962.“CHAPTER-3.—THE CENTRAL AND PROVINCIAL JUDICATURES....124. The remuneration and other terms and conditions ofservice of a Judge of the Supreme Court or of a High Court shallbe as provided in the Second Schedule.SECOND SCHEDULEArticle 124Remuneration and Terms and Conditions of Service of JudgesTHE SUPREME COURT1. There shall be paid to the Chief Justice of the SupremeCourt a salary of Rs.5,500 per mensem, and to every other Judgeof the Supreme Court a salary of Rs.5,100 per mensem.2. Every Judge of the Supreme Court shall be entitled tosuch privileges and allowances, and to such rights in respect ofleave of absence and pension, as may be determined by thePresident, and until so determined, to the privileges, allowancesand rights to which, immediately before the commencing day, theJudges of the Supreme Court of Pakistan were entitled.THE HIGH COURTS1. There shall be paid to the Chief Justice of a High Court asalary of Rs.5,000 per mensem, and to every other Judge of aHigh Court a salary of Rs.4,000 per mensem.2. Every Judge of a High Court of a Province shall be entitledto such privileges and allowances, and to such rights in respect ofleave of absence and pension, as may be determined by thePresident, and until so determined, to the privileges, allowancesand rights to which, immediately before the commencing day, theJudges of the High Court of the Province were entitled.”

Const. Petition No.127 of 2012 116“PRESIDENT'S ORDER 9 OF 1970HIGH COURT JUDGES (LEAVE, PENSION AND PRIVILEGES)ORDER, 1970PART I-PRELIMINARY1. Short title and commencement.-(l ) This Order may be calledthe High Court Judges (Leave, Pension and Privileges) Order,1970....PART III – PENSION13. Conditions of admissibility of pension.—A Judge shall, on hisretirement, resignation or removal, be paid a pension inaccordance with the provisions of this Order if he has –(a) completed not less than five years of service for pensionand attained the retiring age; or(b) completed not less than ten years of service for pensionand, before attaining the age, resigned; or(c)completed not less than five years of service for pensionand, before attaining the retiring age, either resigned, hisresignation having been medically certified to benecessitated by ill-health, or been removed for physical ormental incapacity:Provided that, for the purpose of clause (a) of Part I of theFirst Schedule a deficiency of three months or less in theservice for pension as Judge shall be deemed to have beencondoned.14. Determination of pension.—Subject to the provisions of thisOrder, the pension payable to a Judge who, on his retirement, isentitled to a pension under this Order shall be calculated—(a) in the case of a Judge who is not a member of a service inPakistan or who immediately before his appointment as aJudge did not hold any other pensionable civil post inconnection with the affairs of the Centre or of a Province, inaccordance with the provisions of Part I of the First Schedule;(b) in case of a Judge who is a member of a civil service inPakistan or who immediately before his appointment as aJudge held any other pensionable civil post in connection withthe affairs of the Centre or of a Province, in accordance withthe provisions of Part II of the First Schedule, unless he electsto receive pension under Part I of the said Schedule.15. Pension of Judges not covered by paragraph 13.—A Judgewho immediately before his appointment as such was amember of a civil service in Pakistan or was holding a post inconnection with the affairs of the Centre or of a Province andwho does not fulfill the conditions laid down in paragraph 13shall, on retirement, be entitled to such pension as wouldhave been admissible to him in his service or post, had he not

Const. Petition No.127 of 2012 117been appointed a Judge, his service as a Judge being treatedas service for the purpose of calculating that pension.”Constitution of the Islamic Republic of Pakistan, 1973PART VIITHE JUDICATURECHAPTER 4-GENERAL PROVISIONS RELATING TO THE JUDICATURE...205. Remuneration, etc., of Judges. The remuneration and other termsand conditions of service of a Judge of the Supreme Court or of a HighCourt shall be as provided in the Fifth Schedule.FIFTH SCHEDULE[Article 205]Remuneration and Terms and Conditions of Service of Judges.THE SUPREME COURT1. There shall be paid to the Chief Justice of Pakistan asalary of Rs.9,900 per mensem, and to every other Judge of theSupreme Court a salary of Rs.9,500 per mensem, or such higherSalary as the President may, from time to time determine.2. Every Judge of the Supreme Court shall be entitled tosuch privileges and allowances, and to such rights in respect ofleave of absence and pension, as may be determined by thePresident, and until so determined, to the privileges, allowancesand rights to which, immediately before the commencing day, theJudges of the Supreme Court of Pakistan were entitled.3. The pension payable to a retired Judge of the SupremeCourt per mensem shall not be less or more than the amountspecified in the table below, depending on the length of his serviceas Judge in that Court or a High Court:Provided that the President may, from time to time, raisethe minimum or maximum amount of pension so specified:-Judge Minimum amount Maximum amountChief Justice Rs. 7,000 Rs. 8,000Other Judge Rs. 6,250 Rs. 7,1254. The widow of a Judge of the Supreme Court shall beentitled to a pension at the following rates, namely:-(a)(b)if the Judge dies after retirement - 50 per cent ofthe net pension payable to him; orif the Judge dies after having rendered not lessthan three year's service as Judge and while stillserving as such - 50 per cent of the pensionadmissible to him at the minimum rate.5. The pension shall be payable to the widow for life or, if sheremarries, until her marriage.6. If the widow dies, the pension shall be payable:-(a)to the sons of the Judge who are less than twentyoneyears of age, until they attain that age; and

Const. Petition No.127 of 2012 118(b)to the unmarried daughters of the Judge who areless than twenty-one years of age, until they attainthat age or are married, whichever first occurs.THE HIGH COURT1. There shall be paid to the Chief Justice of a High Court asalary of Rs. 9,400 per mensem, and to every other Judge of aHigh Court a salary of Rs.8,400 per mensem, or such highersalary as the President may, from time to time, determine.2. Every Judge of a High Court shall be entitled to such privilegesand allowances, and to such rights in respect of leave of absenceand pension, as may be determined by the President, and until sodetermined, to the privileges, allowances and rights, to which,immediately before the commencing day, the Judges of the HighCourt were entitled.3. The Pension payable per mensem to a Judge of a High Courtwho retires after having put in not less than five years service assuch Judge shall not be less or more than the amount specifiedin the table below, depending on the length of his service asJudge and total service, if any, in the service of Pakistan:Provided that the President may, from time to time, raise theminimum or maximum amount of pension so specified:-Judge Minimum amount Maximum amountChief Justice Rs. 5,640 Rs. 7,050Other Judge Rs. 5,040 Rs. 6,3004. The widow of a Judge of the High Court shall be entitled to apension at the following rates, namely:-(a)(b)if the Judge dies after retirement - 50 per cent ofthe net pension payable to him; orif the Judge dies after having rendered not lessthan five years' service as Judge and while stillserving as such - 50 per cent of the pensionadmissible to him at the minimum rate.5. The pension shall be payable to the widow for life, or, if sheremarries until her marriage.6. If the widow dies, the pension shall be payable:-(a)(b)to the sons of the Judge who are less than twentyoneyears of age, until they attain that age; andto the unmarried daughters of the Judge who areless than twenty-one years of age, until they attainthat age or are married, whichever first occurs.High Court Judges (Leave, Pension and Privileges) Order, 1997PRESIDENT'S ORDER 3 OF 1997“PART I-PRELIMINARY1. Short title and commencement.-(l ) This Order may be calledthe High Court Judges (Leave, Pension and Privileges) Order,1997.(2) It shall come into force at once and paragraph15 shall be deemed to have taken effect on the 27 th day of July,1991.

Const. Petition No.127 of 2012 1192. Definitions.— ………..(a)(b)(c)(d-e)(f)...……“actual service” means the time spend by a Judgeon duty as such or in the performance of suchother functions as he may be required under anylaw to perform or may be requested by thePresident or the Governor to discharge andincludes vacation (but excluding any time duringwhich the Judge is absent on leave) and joiningtime on transfer from—(i)(ii)(iii)(iv)(v)(vi)a High Court to the Supreme Court;the Supreme Court to a High Court;one High Court to another;one permanent seat of a High Court toanother permanent seat ;a High Court to the place where he isrequired under any law to perform anyfunction; andfrom a place where he is required underany law to perform any function to anothersuch place or to a High Court;“Additional Judge” means a Judge appointed bythe President to be an Additional Judge;……...“Judge” means a Judge of High Court and includethe Chief justice, and Acting Chief Justice and anAdditional Judge;PART III. PENSION14. The condition or admissibility of pension.—A Judgeshall, on his retirement, resignation or removal, be paid a pensionin accordance with the provisions of this Order if he has--(a)(b)(c)completed not less than five years of service forpension and attained the retiring age; orcompleted not less than five years of service forpension and before attaining the age, resigned orsought retirement; orcompleted not less than five years of service forpension and, before attaining the retiring age,either resigned, his resignation having beenmedically certified to be necessitated by ill-healthor been removed for physical or mental incapacityor been allowed by the President for sufficientcause to retire.

Const. Petition No.127 of 2012 12015. Payable Pension.— The Chief Justice and a Judge on hisretirement, resignation or removal as provided in paragraph 14shall be entitled to the minimum amount of pension equal toseventy per cent of the salary determined by the President fromtime to time payable to the Chief Justice, or as the case may be, aJudge on the completion of five years service for pension asJudge, and therefore an extra pension at the rate of two per centof such salary for each subsequent completed year of service asthe Chief Justice or, as the case may be, the Judge, including hisservice if any, in the service of Pakistan the maximum pensionnot exceeding eighty per cent of the said salary.Provided that for the period between twenty-seventh day ofJuly, 1991 and the thirty-first day of May, 1994 the minimumand the maximum amounts shall refer to the amounts specifiedin the Pension of Judges of Superior Courts Order, 1993 (P.O.2 of1993).Explanation.—The expression ‘salary’ means the salaryreferred to in paragraph 1 of the Fifth Schedule to theConstitution of the Islamic Republic of Pakistan or such highersalary as the President may determine from time to time and shallinclude Superior Judicial allowance but shall not include anyallowance or amount representing any other privilege or facility.15A. ………16. Pension of Judges not covered by paragraph 14.—AJudge who immediately before his appointments as such was amember of a civil service in Pakistan or was holding a post inconnection with the affair of the Federation or of a Province andwho does not fulfill the conditions laid down in paragraph 14shall, on retirement, be entitled to such pension as would hasbeen admissible to him in service or post. Had he not beenappointed a Judge, his service as Judge being treated as servicefor the purpose of calculating that pension.”...29. Subsidiary conditions of service.—Subject to theprovisions of this Order and such other provisions as thePresident may make in this behalf, the other privileges and rightsof a Judge shall be determined by the rules for the time beingapplicable to an officer appointed by the President and holdingthe rank of secretary to the Government of Pakistan:Provided that nothing in this paragraph shall have effectso as to give to a Judge who is a member of a civil service lessfavourable terms in respect of his conditions of service than thoseto which he would have been entitled as a member of such serviceif he had not been appointed as a Judge, his service as Judge

Const. Petition No.127 of 2012 121being treated as service for the purpose of determining thoseprivileges and rights.”(Underlining in the above reproductions is ours, which ismade for emphasis)71. A careful reading of above reproduced relevant constitutionalprovisions; Article 221 of the Government of India Act, 1935; Article221 of the Constitution of India, 1949; Article 175 of the Constitutionof Islamic Republic of Pakistan, 1956; Article 124 of the Constitutionof Islamic Republic of Pakistan, 1962; and, Article 205 of theConstitution of Islamic Republic of Pakistan, 1973, read with relevantSchedules to the Constitution, reveals that they are “pari materia” tothe extent of entitlement to privileges and allowances and to suchrights in respect of leave of absence and pension, and in this context,from time to time, High Court Judges Order 1937, President’s Order9 of 1970 and President’s Order 3 of 1997, were issued to determinethe moot question as to their right to pension. Here a reference tosome repealed provisions of the Constitution and the High CourtJudges Order/President’s Orders has been made only to show that inthe High Court Judges Order 1937, condition of minimum length ofservice for a High Court Judge for his entitlement/right to pension, inthe normal course, was 12 years and on attaining the age of sixtyyears, it was seven years, so also in the cases where retirement wasmedically certified to be necessitated due to ill-health, while thePresident was further conferred with power that for special reasons, hemay direct that any period not exceeding three months shall be addedto a Judge’s service for pension. The relevant provision of President’sOrder 9 of 1970, dated 17.6.1970, paragraph 23 whereof repealedthe earlier High Court Judges Order 1937, was its paragraph 13,which provided one clear condition for entitlement of right to pensionas minimum length of actual service of five years on attaining the

Const. Petition No.127 of 2012 122retiring age in the normal course and in case of resignation notless than ten years service. Further, paragraph 15 of thisPresident’s Order contained provision as regards the right topension of other Judges, who were not covered by paragraph 13. Inthe President’s Order 3 of 1997, introduced in the year 1997 andbrought into force at once, except to the extent of its paragraph 15,which was made effective from 27.7.1991, in the definition clause,meaning of ‘actual service’, ‘additional judge’ and ‘judge’ werespecifically provided, while section 14 dealt with the condition ofadmissibility of pension of the retired judges. A bare reading ofPresident’s Order 3 of 1997 clearly spells out that every Judge ofthe High Court, having completed not less than five years of actualservice as such on attaining the retiring age, is entitled forpensionary benefits. This provision is further subject to paragraph29 of the President’s Order 3 of 1997, relating to the “subsidiaryconditions of service”. A close look at the Fifth Schedule to Article205 of the Constitution of Islamic Republic of Pakistan, 1973,which is an important integral part of the constitutional mandate,applicable to the present case, further reveals that paragraphs-2and 3 relating to High Court, are the two relevant provisions of theConstitution, which in unequivocal term provide that in terms ofparagraph-2 “EVERY JUDGE” of a High Court shall be entitled tosuch “PRIVILEGES”, “ALLOWANCES”, and to such “RIGHTS” inrespect of leave of absence and “PENSION” as may be determinedby the President, and until so determined, with the privileges,allowances and rights, to which immediately before thecommencing day, the judges of the High Court were entitled. Fromthe language of paragraph-2, it is also clear that it only refers toone category of judges of the High Court i.e. “Every Judge”. To put

Const. Petition No.127 of 2012 123it in other words, there are no two categories of judges specifiedtherein as many senior ASCs and retired judges of the High Courthave argued before us while supporting their claim despite theyhaving rendered less than five years actual service as such. Whatis important to notice here is that firstly right to pension is to bedetermined by the President for every judge of the High Court anduntil such determination, the privileges, allowances and rightsalready in-force before the commencing day, are to be availed by allof them. Keeping in view this clear and unambiguous language ofparagraph-2 (ibid), when we revert to the provisions of paragraph13 of the President’s Order 9 of 1970, relating to conditions ofadmissibility of pension, we find that till its repeal vide paragraph30 of President’s Order 3 of 1997, rights of every Judge of the HighCourt were already determined in the manner that unless they hadcompleted not less than five years of service before retiring age,they were not eligible or entitled to any pensionary benefits. It wasin this background that none of the retiring honourable judge ofthe High Court, having less than five years service as such to hiscredit, ever ventured to agitate such claim. In the year 1997, whenthe President’s Order 3 of 1997 was promulgated with immediateeffect (except its section 15, which was made applicableretrospectively w.e.f. 07.7.1991), under paragraph 14, a similarcondition of not less than five years service before attaining theretiring age was engraved, and the position under paragraph 17 ofthe High Court Judges Order, 1937 (repealed on 17.6.1970) wasalso not much different, except that requirement of length ofservice to earn right to pension at that time was minimum 12 yearsservice in the normal course or in case of attaining the age of sixtyyears, not less than seven years.

Const. Petition No.127 of 2012 12472. Reverting to the language of paragraph-3 of FifthSchedule to Article 205 of the Constitution of 1973, we find that inits original text, paragraph-3 had different phraseology, but it wassubsequently amended in the present form by 12 th amendment Actof 1991. However, in both the situations, right to pension of aretired High Court Judge was made conditional to not less thanfive years actual service, while a further table was provided forincrease in the percentage of pension depending upon the length ofhis service as a Judge of the High Court upto the maximum of 80percent of his salary. Thus, the two paragraphs 2 and 3 of FifthSchedule to Article 205 of the Constitution either read separately/conjunctively or disjunctively, do not alter/change in any mannerthe requirement of minimum five years length of actual service forevery Judge of the High Court as one of the basic condition to earnthe right to pension. The arguments of learned ASCs based on theprinciple of reading down etc are, thus, of no avail in this regard.73. Reference to Article 207 of the Constitution, debarring thehonourable retired Judges of the High Court to plead or act in anyCourt or before any authority within the jurisdiction of the HighCourt they have served in that capacity, arguments advanced bysome of the learned ASCs in order to strengthen the case of thosehonourable retired Judges of the High Court, who retired beforecompleting a period of minimum five years actual service as such,are equally without force. Firstly, for the reason that in view of thereasonable classification to the extent that they are not debarredfrom practicing before the High Courts of other Provinces and theSupreme Court, such limited restriction is not in conflict with thespirit of Article 18 of the Constitution relating to freedom of trade,

Const. Petition No.127 of 2012 125business or profession. Secondly, all the Judges who retired orresigned before completing their actual service as a High Court Judgefor a minimum period of five years, knew well in advance at the timeof their elevation to this high office that their total length of serviceupon appointment, looking to their date of birth qua retirement willbe less than five years, therefore, as per Constitutional mandate andseventy five years old convention/usage, they will not be entitled toany pensionary benefit. In such circumstances, with profoundrespect, all these honourable retired Judges of High Court areestopped from agitating such grievance at this belated stage. Thisview, further gains support from the fact that except fewhonourable retired High Court Judges, who have now availed thebenefit of judgment under challenge, though they retired in 70s,80s, 90s and upto the passing of judgment under challenge, noone ever put up his claim on the basis of interpretation of Article205 read with Fifth Schedule and President orders No.3 of 1997, 9of 1970, as now made applicable to their cases with reference tojudgment under challenge. After all they all were highly skilled andqualified professional in the field of law and jurists in their ownrights. Thus, any plea of ignorance of law or misinterpretation ofthe relevant Constitutional provisions for over seven decadesdoesn’t appeal to reason.74. Besides, the base line of minimum five years actualservice to become entitled for pensionary benefits and to deny theright to pension to other retired High Court Judges, who have notserved as such for five years or more, applying the principles ofinterpretation of statutes as summarized in the precedingparagraph 69 and reading the Constitutional provisions and P.O’s

Const. Petition No.127 of 2012 126as a whole, gain full support from the language of High CourtJudges Order 1937 (Repealed), President Orders i.e. PresidentOrder No.9 of 1970 (Repealed) and President Order No.3 of 1997,which also provide for a special provision for relaxation of suchperiod upto certain limit by the President in hardship cases, wherethe required period of minimum five years service has remainedshort by few days or few months. For the argument sake, in casedetermination of right to pension of such category of Judges, whofrom time to time rendered less than five years actual service totheir credit and retired, was yet to be made by the President thenthere was no necessity for insertion of such provision in both thePresident’s Order, as otherwise those hardship cases, havingdeficiency of few months, could have been separately dealt withduring such process of determination. This view of the mattergains further support from the fact that in case right to pension asregards honourable retired Judges of the High Court, having lessthan five years actual service was yet to be determined, then whysince the year 1937 uptil now, neither any such representationwas made nor any legal remedy was followed by the honourableretired Judges allegedly qualifying for pension in that category. Inthis regard, we also confronted many learned Sr. ASCs to show usa single instance either of pre-partition days or thereafter whereinsuch interpretation of law was advanced or such grievance wasever agitated by any honourable retired Judge of the High Courtfalling in this category or earlier to judgment under challenge, anyjudge of the High Court was ever granted right topension/pensionary benefits on the basis of his length of service assuch for a period of few months or few years, irrespective ofminimum required length of actual service, as has been held

Const. Petition No.127 of 2012 127through the judgment under challenge. In reply, they franklyconceded that they have not come across any such instance. Allthese facts taken together leave us in no doubt to hold that thejudgment under challenge is outcome of improper assistance to theCourt due to which number of relevant provisions of law necessaryfor a just and fair adjudication of this issue were entirelyoverlooked and the findings were built on entirely wrong premises.75. Another aspect of the case, which has been argued beforeus with vehemence by some of the learned ASCs, is the legal statusof the judgment under challenge “as to whether it is a judgment in“personam” or a judgment in “rem”. In this regard some of thelearned ASCs have also made reference to the cases Pir Bukhshversus Chariman, Allotment Committeee (PLD 1987 S. C. 145)and Federation of Pakistan versus Qamar Hussain Bhatti (PLD2004 S.C. 77), which laid down the test of distinction between a“judgment in rem” and “judgment in personam”. In order to dilateupon the true meaning of these two legal phrases, somereproduction from the case of Pir Bukhsh (supra) will be useful,which reads as under:-“The terms “in rem” and “in personam” are of Roman law used inconnection with actio, that is, actio in rem and actio in personam todenote the nature of actions, and with the disappearance of the Romanforms of procedure, each of the two terms “in rem” and “in personam” gottagged with the word judgments to denote the end-products of actions inrem and actions in personam. Thus, according to the civil law an actio inwhich a claim of ownership was made against all other persons was anaction in rem and the judgment pronounced in such action was ajudgment in rem and binding upon all persons whom the Court wascompetent to bind, but if the claim was made against a particular personor persons, it was an action in personam and the decree was a decree inpersonam and binding only upon the particular person or personsagainst whom the claim was preferred or persons who were privies tothem.”

Const. Petition No.127 of 2012 12876. However this aspect has hardly any relevancy to the factsof the present proceedings, as while dealing with this issue, wehave felt no difficulty in forming our view, as from the verylanguage of the judgment under challenge, particularly, from itsparagraphs 31 to 34, as reproduced below, it is clear that for allintent and purpose appeal against a private person challenging thejudgment of the High Court regarding his individual grievance waswidened in scope and treated as a judgment in rem, benefitwhereof was open endedly extended even to other honourableretired Judges who were not party to the said appeal and even tothose who were at one stage of the proceedings party through somemiscellaneous applications, but had earlier withdrawn the sameduring its pendency. In addition to it, benefit of the judgmentunder challenge was also extended to the honourable retiredJudges of the Federal Shariat Court of Pakistan, though primafacieno such issue was involved in the proceeding. For ease ofreference, such paragraphs of judgment under challenge arereproduced as under:-“31. Before parting with this judgment, we deem it proper to pointout that Chief Justice and Judges of Federal Shariat Court are alsoentitled to the grant of pension and pensionary benefits available to theretired Judges of the Supreme Court and High Courts under theConstitution. The appointment of the Chief Justice and Judges-of theFederal Shariat Court is made by the President under Article 203-C ofthe Constitution and the terms and conditions of service of the Judges ofthe said Court are also determined by the President, therefore,notwithstanding the fixed tenure of the Chief Justice and Judges of theFederal Shariat Court, they are entitled to the terms and conditions ofservice and remunerations including pension and pensionary benefits atpar to the Judges of the Supreme Court and High Courts, by virtue ofArticle 203-C(9) of the Constitution which provides as under:--"(9) A Chief justice who is not a Judge of the Supreme Court shallbe entitled to the same remuneration, allowances and privilegesas are admissible to a Judge of the Supreme Court and a Judgewho is not a Judge of a High Court shall be entitled to the same

Const. Petition No.127 of 2012 129remuneration, allowances and privileges as are admissible to aJudge of a High Court:Provided that where a Judge is already drawing a pension for anyother post in the service of Pakistan, the amount of such pensionshall be deducted from the pension admissible under the clause."32. The Chief Justice or a Judge of Federal Shariat Court shall beentitled to the same salary, pension, allowances, privileges, includinggrant of leave/LPR and other benefits as are allowed to a Judge of theSupreme Court and High Court respectively. The plain reading of Article203-C of the Constitution read with Article 205 and Fifth Schedule of theConstitution would show that right of pension and pensionary benefits ofthe Chief Justice and Judges of Federal Shariat Court notwithstandingthe length of service or fixed term of tenure is recognized under theConstitution and consequently, this judgment subject to theConstitution, shall be equally applicable in respect of the right of pensionand pensionary benefits admissible to the Chief Justice and Judges ofthe Federal Shariat Court.33. In the light of foregoing reasons, we hold that all retired Judges ofthe High Courts who retire as such Judge in terms of Article 195 of theConstitution of Islamic Republic of Pakistan and the Chief Justices andJudges of the Federal Shariat Court notwithstanding the tenureappointment, are entitled to the pension and pensionary benefits interms of Article 205 read with Fifth Schedule of the Constitution readwith P.O. No.8 of 2007 and Article 203-C of the Constitution and allother enabling provisions of the Constitution as well as President's OrderNo.2 of 1993 and P.O.No.3 of 1997, irrespective of their date ofretirement and length of service. The Miscellaneous Applications bearingNo.940 in C.A. 1021 (filed by Justice (R.) Muhammad Azam Khan),968/05 in C.A. 1021/95 (filed by Syed Sharif Hussain Bokhari andMuhammad Aqil Mirza, retired Judges of Lahore High Court, 1004/05 inC.A. 1021/95 (filed by Ghulam Muhammad Qureshi), 1176/05 in C.A.1021/95 (filed by Mr. Riaz Kayani retired Judge of Lahore High Court,1190/05 in C.A. 1021/95 (filed by Rao Iqbal Ahmed Khan), retired Judgeof Lahore High Court, 1368/05 in C.A. 1021/95 (filed by Dr. MunirAhmad Mughal), retired Judge of Lahore High Court, 2079/06 in C.A.1021/95 and 1273/06 in Const. P. 10/01 (both filed by Justice (R.)Saeed-ur-Rehman Farrukh), involving similar questions of fact and law,containing the prayer for impleadment of the applicants in theconstitution petition as co-petitioner and in civil appeal as respondent,have already been allowed.34. In consequence to the above discussion, the ConstitutionPetitions Nos. 8/2000, 10/2001, 26/2003, 34/2003, 04/2004 and26/2007, filed by the retired Judges of the High Courts are allowed andthe petitioners/ applicants in these petitions and miscellaneousapplications, along with all other retired Judges of the High Courts, who

Const. Petition No.127 of 2012 130are not party in the present proceedings, are held entitled to get pensionand pensionary benefits with other privileges admissible to them interms, of Article 205 of the Constitution read with P.O.No.8 of 2007 andArticle 203-C of the Constitution read with paras 2 and 3 of FifthSchedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the date of theirrespective retirements, irrespective of their length of service as suchJudges.”.77. As a corollary of above discussion, it is also imperative andsignificant to mention here that the judgment under challenge waspassed by a learned three member Bench of this Court consisting ofM/s Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan andMuhammad Farrukh Mahmood, JJ on 06.3.2008, at a time when thewhole superior judiciary of the Country was in kayos, crises anddisarray due to unconstitutional measures taken by the thenPresident/dictator General (Retired) Pervez Musharraf of Pakistan,who by hook or crook wanted to remain in power and in thatperspective attempted to destroy the institutions in the Country,particularly targeted the superior judiciary, to bring them under histhumb and control. The discussion regarding this aspect of the casein the present proceedings is enough to this extent. However, in thiscontext if any further detailed discussion is felt orderly, reference canbe made to the judgment of a full Bench of this Court in the case ofSindh High Court Bar Association (supra), wherein this aspect hasbeen extensively discussed and aptly attended to.78. It is pertinent to mention here that while takingcognizance in these suo moto proceedings, we have exercised allcare and caution to intimate all the Honourable Retired Judges ofthe High Court, who, in one or the other capacity have availed thebenefit of judgment under challenge, to afford them dueopportunity of hearing and for this purpose notices were alsoissued to the legal heirs of late Mr. Justice Ahmed Ali U. Qureshi.

Const. Petition No.127 of 2012 131Besides, offices of the Accountant General of all the four Provinceswere also directed to bring on record all the relevant facts andfigures in order to afford opportunity of hearing to all theconcerned, but, as the judgment under challenge was given thestatus of judgment in rem, therefore, it is further made clear thatirrespective of the fact whether some Honourable Retired Judgeshad notice or they participated in these proceedings or not, eachone of them will be bound by the fallout of this judgment in thesame manner as if they were party to these proceedings. Thisclarification is necessary as, particularly, the office of AccountantGeneral Sindh and Balochistan have not come up before this Courtin response to our order dated 3.4.2013, with clean hands, somuch so that at one stage of these proceedings we had to initiatecontempt proceedings against Deputy Accountant General Sindhfor his negligent and irresponsible conduct in responding to ourqueries.79. There is yet another aspect of this case, which has beenargued before us by some of the learned ASCs and HonourableRetired Judges of the High Court, who have been either elevated orhave resigned from their offices after the judgment underchallenge. They have contended that since at the relevant time oftheir elevation/resignation judgment under challenge was in fullforce applicable and implemented, therefore, valuable rights haveaccrued in their favour on the principle of locuspoenitentiae/legitimate expectancy which cannot be taken awaylightly by way of some observations in this case. Indeed, suchsubmissions of some of the newly elevated or honourable retiredJudges of the High Court are in line with the ratio of the judgment

Const. Petition No.127 of 2012 132under challenge, but at the same time it is to be noticed that theHonourable Judges, who have resigned from their office beforecompletion of minimum five years service as such have to blesstheir own stars for this purpose because their mere oral assertionthat they had to resign from their office under compellingcircumstances, cannot be legally accepted. As regards the otherJudges, who have taken oath of their office as High Court Judgeafter the judgment under challenge, suffice it to observe that sincethe said judgment has been declared by this Court as per incurium,null and void, therefore, any benefit on the principle of legitimateexpectancy cannot hold the filed, more so, when as to theirpensionary rights they are to be governed by the law in force at therelevant time i.e. Article 205 of the Constitution read with its FifthSchedule and President’s Order No.9 of 1970 or 3 of 1997,regarding which a detailed discussion has already been made inthe preceding paragraphs of this judgment, and not by the dictalaid down in the judgment under challenge, which has beendeclared “per incuriam”.80. Another angle for looking at the interpretation of therelevant Constitutional provision and the President’s Order, to viewthe right to pension of the honourable retired Judges of the HighCourt, having less than five years actual service, is admitted longstanding convention/usage of its interpretation which has given ita status of statutory backing on the principle of “Optima Est LegisInterpres Consuetudo”, which is defined in Black’s Law DictionarySixth Edition as under:-“Custom is the best interpreter of the law”81. Discussing this legal principle as a rule of construction inthe case of Sheppard v. Gosnold (1672 Vangham 159, P-169),

Const. Petition No.127 of 2012 133Vaughan, C.J. observed that where the penning of a statute isdubious, long usage is just a medium to expound it by; for jus etnorma loquondi is governed by usage, and the meaning of thingsspoken or written must be as it hath constantly been received to beby common acceptation. General usage under a statue may makefor a practical construction of it which will be accorded greatconsideration by the courts. General usage, of long durationtherefore unquestioned, will frequently be of great assistance in thesearch of legislative meaning. The meaning publicly given bycontemporary or long professional usage, is presumed to be a trueone, even when the language has etymologically or popularly adifferent meaning. It is obvious that the language of a statute mustbe understood in the sense in which it was understood when it waspassed, and those who lived at or near the time when it waspassed, may reasonably be supposed to be better acquainted thantheir descendants with the circumstances to which it had relation,as well as with the sense then attached to legislative expressions.This view of the matter is fortified from the case of National andGrindlays Bank Ltd. v. Municipal Corporation for Greater Bombay(AIR 1969 SC 1048) and also from the judgment of this Court inthe case of Asad Ali (supra), which lays down as under:-“95. ……..a constitutional convention once established has thesame binding effect as a Constitutional provision. We may,however, add that in the case of an unwritten Constitution,conventions play a more prominent and dominant `role in theinterpretation of Constitutional provisions than in the case ofwritten Constitution. Therefore, while explaining theConstitutional provision of a written Constitution on the basis ofa convention, it must be shown that either a convention hasdeveloped with the passage of time side by side with theenforcement and interpretation of the Constitution or aconvention already existing on the date of enforcement of awritten Constitution, has either received a statutory, recognition

Const. Petition No.127 of 2012 134in the Constitutional document or has been established as aConstitutional convention on account of conscious and deliberateobedience of the convention by those who are charged with theduty of interpreting or enforcing the Constitution. Therefore,when an already existing convention is followed in interpreting aprovision of a written Constitution consistently and consciouslyover a length of time by those who are responsible under theConstitutional mandate to interpret and enforce the saidprovision of Constitution, the convention is established as aConstitutional convention and any breach thereof may be treatedby the Courts as a breach of the provision of the Constitution towhich the convention relates. …..”82. Indeed, right to pension of every honourable retired Judgeof the High Court in our country is to be determined strictly in linewith applicable Article 205, its Fifth Schedule read with applicableP.O No.9 of 1970 or P.O. No.3 of 1997, but for our betterunderstanding, we have also attempted to further divulge into thequestion of condition of minimum length of service for honourableretired Judges of High Court as one of the basic requirement toearn the right to pension. For this purpose, we have over seensome relevant Constitutional and statutory provisions in force onthis subject in the neighbouring countries, India, Bangladesh andSri Lanka, which are in substance pari materia to ours and noticedthat in each of these countries without any exception there isrequirement of length of service of minimum five years or more foracquiring such right as a retired Judge of the High Court, while insome other countries it is stretched upto 10/12 years, and thislong standing convention, having the force of law, is beingreligiously adhered to.83. In so far as the arguments of Rana M. Shamim, learnedASC who represented honourable retired Justice Dr. GhousMuhammad and Mr. Afzal Siddiqui, learned ASC who representedhonourable retired Justice Syed Najmul Hassan Kazmi, with

Const. Petition No.127 of 2012 135reference to Article 270AA 3(b) of the Constitution, are concerned,we find much force in their contentions that they shall be deemed tohave retired on attaining their respective age of superannuation andas such both of them have completed minimum five years actualservice to their credit as Judge of the High Court, which has madethem entitled for the benefit of pension irrespective of the judgmentunder challenge. Thus, for this purpose, they have their ownentitlement for pension, independent of judgment under challenge.84. The submissions made by some of the learned ASCs that“Additional Judges” of the High Court, being covered with thedefinition of “Judge” as defined under Article 260(1)(c) of theConstitution, are equally entitled for right to pension likepermanent judges of the High Court, have much force as at oneplace the definition of ‘Judge’ in the above referred Article of theConstitution clearly defines that in relation to the High Court, aperson who is an Additional Judge of the High Court, is alsoincluded in the definition of a Judge and at the other place underArticle 197 of the Constitution, relating to appointment ofAdditional Judges also, no discrimination is identified for thepurpose of holding them disentitled for right to pension like anypermanent judge of the High Court, who, in terms of Article 195 ofthe Constitution, will retire on attaining the age of 62 years, unlesshe resigns sooner or removed from the office in accordance withthe Constitution. It will be also pertinent to mention here thatunder paragraph-2 of the President’s Order 3 of 1997, “AdditionalJudge” and “Judge” of the High Court have been separately definedas under:-“2(c)“Additional Judge” means a Judge appointed by thePresident to be an Additional Judge.”

Const. Petition No.127 of 2012 136“2(f) “Judge” means a Judge of High Court and include theChief Justice, and Acting Chief Justice and an AdditionalJudge.”From the reading of above two definitions, again it is clear thatdefinition of a Judge of the High Court also includes additionaljudge, therefore, no exception could be taken in determination ofhis right to pension for the reason that he has not yet beenappointed as permanent judge of the High Court in terms of Article193 of the Constitution. Another added reason in support of thisconclusion emerges from the combined reading of paragraph-2 ofthe Fifth Schedule to Article 205 of the Constitution, speakingabout “every judge”, and the definitions of “judge” under Article260(1)(c)(b) of the Constitution and paragraph-2(f) of President’sOrder 3 of 1997, which leave no room for exclusion of “AdditionalJudge” from the category of “every judge” within the meaning ofparagraph-2 (ibid). However, it is necessary to state and clarifyhere that in such eventuality, for claiming right to pension aretired judge of the High Court “additional judge” will also have tohave minimum five years actual service to this credit.85. In view of the foregoing discussion, we find thatAdditional Judge of the High Court will be entitled for equaltreatment like a permanent Judge of the High Court for his right topension, but subject to subsisting determination of such right bythe President in terms of Article 205, read with Fifth Schedule ofthe Constitution and the applicable President’s Order.86. When we go into further details of this litigation, whichearlier ended up in the form of judgment under challenge, we findthat on 19.10.1994, retired Justice Ahmed Ali U. Qureshi, who hadinitially joined Sindh Judiciary on 11.6.1953 as sub-Judge,

Const. Petition No.127 of 2012 137thereafter elevated as Additional Judge of the High Court of Sindhin July, 1985, wherefrom he retired on 25.10.1988, after renderingactual service in that capacity for a period of three years and fourmonths approximately, upon his retirement was found entitled forpension at the rate of Rs.4,200/- per month, as retired DistrictJudge. The payment of this pension amount was in addition to asum of Rs.2,100/- as cost of living allowance payable to a judge ofthe High Court under paragraph 16-B of the President’s Order 9 of1970, as amended by President’s Order 5 of 1988. The pension ofthe petitioner was revised from time to time, but when thepetitioner approached the Accountant General Sindh, Karachi toavail the benefit of President’s Order 2 of 1993, he was denied suchbenefit on the ground that since he had not put up minimum fiveyears actual service as Judge of the High Court, therefore, he wasnot entitled for its benefit.87. In the above discussed background, in order to avail thebenefit of President’s Order 2 of 1993, the petitioner had broughtthe said petition before the High Court in person with the followingprayers:-“a) To declare the P.O. 9 of the 1970 so far its provision inPart III with regard to pension are repugnant to theConstitution of the Islamic Republic of Pakistan are void.b) To order the Respondents to pay the Petitioner maximumpension payable to a Judge of the High Court under P.O. 2of 1993 alongwith arrears or in alternative.e) To order the Respondents to fix the pension of thePetitioner at Rs.8,190/- per month admissible to him asCivil Servant, add to it increments in pension allowed fromtime to time and pay all the arrears alongwith markup forthe period this amount is illegally retained by RespondentNo.4.”88. This petition was strongly resisted by the respondents onvarious legal grounds regarding disentitlement of the petitioner,

Const. Petition No.127 of 2012 138however, narration of facts was not disputed. It was in thisbackground of the litigation that learned Division Bench of theHigh Court of Sindh, wherein one of its member was Justice Ms.Majida Rizvi (as she then was), delivered its judgment in thefollowing terms.“11. In the result, the petition is allowed and the respondentsare liable to fix the petitioner’s pension at the maximum pensionas allowed under President’s Order No.2 of 1993. The parties areleft to bear their own costs.”89. A perusal of this judgment of the High Court of Sindhdated 08.2.1995, which was subsequently impugned before theapex Court in the earlier proceedings, reveals that the main groundwhich found favour for grant of such relief to the petitioner was theprinciple laid down in the case of I.A Sharwani v. Government ofPakistan (1991 SCMR 1041) was attracted, operative part whereofreads as under:-“9. We are, consequently, of the view that rights and privilegesadmissible to the petitioner in respect of his pension are now governedunder President’s Order No.2 of 1993. As has been held by the SupremeCourt in I.A. Sharwani’s case, instruments such as P.O. 2 of 1993 areconstitutional instruments, therefore, full effect must be given to them.We, therefore, find no force in the contentions raised on behalf of therespondents. Learned Standing Counsel has also adopted the argumentsadvanced by the learned A.A.G. but as we have just pointed out, we areunable to agree with his contentions.10. Although, it has also been contended by the petitioner in thealternative that, in any case, he is entitled to a pension of Rs.8,190 inaccordance with the Civil Servants Rules, but since we have accepted hisplea that P.O. 2 of 1993 is applicable to the petitioner, it is not necessaryfor us to consider the second contention of the petitioner. However, it willalways be open for the petitioner to take such a plea in the future if thecircumstances so require.”90. After scanning the whole record in this case, we aresomewhat surprised to see that nowhere in the judgment dated08.2.1995, which was subsequently challenged by the AccountantGeneral Sindh before the apex Court, question of entitlement of

Const. Petition No.127 of 2012 139pension to every judge of the High Court, irrespective of his lengthof service, was involved or decided by the High Court, rather, itwas held that at the time of retirement of the petitioner fromservice as Judge of the High Court, the rights and privileges as tohis pension had not yet been determined by the President inpursuance of paragraph 2 of the Fifth Schedule, but as wasprovided by said paragraph, till such rights and privileges weredetermined by the President, a Judge of the High Court wasentitled to such privileges, allowances and rights, to which he wasentitled immediately before the commencing day, while such dayhas been specified by Article 265 of the Constitution as the 14 thday of August, 1973. In our opinion, remaining oblivious of allthese legal and factual deficiencies and the limited scope of appealagainst the impugned judgment, floating on the surface of record,is yet another strong ground to justify declaring the judgmentunder challenge per incuriam.91. At the cost of repetition, it will be worthwhile to reproducehere paragraph-2 of Fifth Schedule to Article 205 of theConstitution as all along it has been the center point of argumentsadvanced in this case on behalf of honourable retired judges of theHigh Court etc, who have been the beneficiary of the judgmentunder challenge.“FIFTH SCHEDULE[Article 205]Remuneration and Terms and Conditions of Service of Judges.THE SUPREME COURT……………………………………………………………………………………THE HIGH COURT1. ………………………………………………………………………….2. Every Judge of a High Court shall be entitled to such privilegesand allowances, and to such rights in respect of leave of absence

Const. Petition No.127 of 2012 140and pension, as may be determined by the President, and until sodetermined, to the privileges, allowances and rights, to which,immediately before the commencing day, the Judges of the HighCourt were entitled”In the first place, simple reading of this paragraph alongwithcorresponding language of Article 221 of the Government of IndiaAct, 1935; relevant paragraph of the High Court Judges Order,1937; Article 221(2) of the Constitution of India, 1949 (pre 54 thamendment and post 54 th amendment); paragraph 4(2) relating toHigh Court Judges in the Third Schedule to the Constitution ofIslamic Republic of Pakistan, 1956; Article 124 read withparagraph-2 of the Second Schedule to the Constitution of IslamicRepublic of Pakistan, 1962, relating to High Court; and abovereproduced paragraph-2 of the Fifth Schedule to Article 205 of theConstitution of 1973, read with President’s Order 9 of 1970 orPresident’s Order 3 of 1997, leads us to an irresistible conclusionthat these provisions for the purpose of determination of right topension of the honourable retired judges of the High Court are“pari materia” for all intent and purposes. In this background whenwe proceed further to look into the language of the High CourtJudges Order, 1937, President’s Order 9 of 1970 and President’sOrder 3 of 1997, we find no ambiguity at all that thedetermination, as to the right to pension required to be made bythe President under the Constitution, was made from time to timefor every judge of the High Court. Therefore, to say thatdetermination of right to pension for the honourable retired judgesof the High Court, who have rendered less than five years actualservice is yet to be made is absolutely fallacious and misconceived.This view of the matter gains further support from the fact that thedetermination of right to pension to be made on each occasion,

Const. Petition No.127 of 2012 141was to be made for every judge of the High Court at one go and notin piecemeal; and this is what exactly through all theseinstruments his Majesty in Council and the President have done inunequivocal terms that at all times minimum length of service,(now five years), was the bottom line to earn the right to pension.Not only this, but a combined reading of all the three orders i.e.High Court Judges Order, 1937, President’s Order 9 of 1970 andPresident’s Order 3 of 1997 in sequence also reveals that suchdetermination of “right to pension” of “every judge” of the HighCourt was always made and continued without break since 1937uptill today.92. To add force to the above interpretation of paragraph 2 ofthe Fifth Schedule to Article 205 of the Constitution, we also cannotoverlook two maxims of similar nature “Expressum Facit CessareTacitum” meaning thereby that “what is expressed makes what isimplied to cease”, and “expressio unis est exclusio alterius”meaning thereby that “the express mention of one thing implies theexclusion of another”. Thus, where a statute contains expresscovenants or mention of things and contingencies no otherimplication of any covenant or contingency on the same subjectmatter can be raised. In other words, where the legislaturepostulates and specifies some thing for some category of personsonly, it, inline with these maxims, impliedly exclude others. Indeed,the principle propounded in these two maxims, in certainsituations, can have dangerous repercussions, therefore, it is to beapplied with extra care and caution, but in the present case, there isabsolutely no dispute or denial of the fact that right from the year1937, while exercising powers, his Majesty in Council or the

Const. Petition No.127 of 2012 142President, as the case may be, have from time to time laid downthe criteria for entitlement of pensionary benefits for every retiredjudge of the High Court, and for this purpose, the relevantprovisions of Judges Order 1937 or two President’s Order, whichare “pari materia”, give a clear meaning of exclusion from theentitlement of pensionary benefits, all those honourable retiredjudges of the High Court, who have, under the order of 1937 orPresident’s Orders 9 of 1970 and 3 of 1997, not completedminimum twelive/five years actual service to earn right to pension.A reading of paragraph 2 and 3 in any manner, conjunctive ordisjunctive, makes it abundantly clear that the President at the timeof determination of right to pension for a retiring honourable judgeof the High Court has made not less than five years actual serviceas bottom line for his entitlement/right to pension with full intentand, thus, excluded all those who have not met this minimumthreshold of actual service. But in some cases subject to otherprescribed and applicable provisions like proviso to paragraph-13(c)of President’s Order No.9 of 1970 or paragraph 29 of the President’sOrder 3 of 1997, read with S.R No.423 (ibid), relating to automaticor otherwise addition of certain period in it to make up deficiency inhardship cases. The arguments advanced by some of the learnedASCs that Fifth Schedule to Article 205 of the Constitution is a subconstitutionallegislation, in our opinion, are also meritless,therefore, any argument built on these premises are devoid of force.At the cost of repetition, we may mention here that right todetermine conferred to the President under paragraph 2 (ibid) is nota right limited to the extent of determination of quantum of pensionfor every judge, but in the first place, President has to determine thecriteria for honourable retired judge of the High Court to earn right

Const. Petition No.127 of 2012 143to pension, which exercise has been already undertaken explicitlyand in unambiguous terms in both the earlier President’s Order 9 of1970 and President’s Order 3 of 1997 (reproduced above). To put itin other words, it is the President who has been exclusivelydelegated with the power, in the first place to determine theentitlement/right to pension of every honourable retired judge of theHigh Court; and, in the second place, to determine the quantum ofsuch pensionary benefit, which exercise has been repeatedlyundertaken by him in very clear terms. While discussing the issuerelating to entitlement of pensionary benefits of honourable retiredjudges of the High Court, having less than five years service, anotherstrong ground which has emerged for our consideration fromadmitted facts, and carries force of convention/usage is that learnedASCs addressing the Court despite specific suggestions to this effect,could not cite a single instance from the Sub-continent where thehonourable retired judges of the High Court, having rendered lessthan the minimum required period of actual service, envisaged ascondition for entitlement for right to pension under the High CourtJudges Order 1937, President’s Order 9 of 1970 or President’sOrder 3 of 1997, ever claimed or got pension on the basis ofinterpretation of paragraph 2 and 3 read with applicable President’sOrder in the manner as erroneously interpreted in the judgmentunder challenge. We, therefore, have no hesitation to hold that forthe preceding reasons and further reasons to be recordedhereinafter, the judgment under challenge falls in the category ofper incuriam and makes it without jurisdiction and nullity in theeyes of law, as if it never existed at all.93. After having answered the first two moot points, when wecome to the last point relating to the fate of pensionary benefits

Const. Petition No.127 of 2012 144already availed by the honourable retired judges of the High Court,though having less than five years actual service to their credit, onthe basis of the judgment under challenge, we deem it proper thatbefore undertaking any further discussion in this regard, toprepare a statement in the form of a chart, containing the relevantdates and financial repercussions, as noted hereunder.Lahore High CourtS.No.1Calculation/Statement of Accounts pertaining to Pension ofHon'ble Judges of High CourtsName of Hon'ble Judge/ orwidows of Hon'ble JudgesMr. Justice (Retd) AbdulGhafoor Khan LodhiDate ofretirement/resignation/removalActualLength ofService(Y-M-D)Total PensionDrawnincludingCommutationPer monthPensionAnnualPensionAmount1-Jul-81 04-05-20 24,907,339 - -23456789101112131415161718Mr. Justice (Retd) MianGhulam AhmadMr. Justice (Retd) Sh. AbdulMannanMr. Justice (Retd) RanaMuhammad Arshad KhanMr. Justice (Retd) Ch. MushtaqAhmad KhanMr. Justice (Retd) Khan Riazud-DinAhmadMr. Justice (Retd) MuhammadAqil MirzaMr. Justice (Retd) AbdulHafeez CheemaMr. Justice (Retd) GhulamSarwar Sh.Mr. Justice (Retd) Syed SharifHussain BukhariMr. Justice (Retd) MuhammadIslam BhattiMr. Justice (Retd) Rao IqbalAhmad KhanMr. Justice (Retd) Mian Saeedur Rehman FurrukhMr. Justice (Retd) Sh. AmjadAliMst. Shahida Khurshid w/o Mr.Justice (Retd) Raja MuhammadKhurshidMr. Justice (Retd) Syed Najamul Hassan KazamiMr. Justice (Retd) IftikharAhmad CheemaMr. Justice (Retd) Dr. MunirAhmad Mughal2-Feb-95 02-05-04 26,845,284 515,652 6,187,8246-Nov-95 03-02-06 25,850,871 550,422 6,605,0641-Oct-96 02-01-23 25,281,378 535,133 6,421,5961-Oct-96 04-01-23 24,386,404 528,002 6,336,0241-Jan-98 03-02-23 23,275,729 533,944 6,407,3284-Apr-97 02-07-26 24,048,779 528,002 6,336,0241-Oct-97 03-01-23 28,802,381 610,287 7,323,44410-Dec-98 02-00-00 25,986,075 594,663 7,135,95615-Jun-98 03-10-07 24,615,969 527,950 6,335,40022-Dec-98 03-02-11 26,184,753 608,654 7,303,84812-Jan-99 02-01-00 24,793,480 519,535 6,234,4201-Aug-98 03-06-12 24,392,330 527,950 6,335,40022-Jun-99 02-06-11 24,233,654 608,654 7,303,84824-Aug-99 03-10-13 13,662,023 297,012 3,564,14427-Jan-00 02-07-29 24,027,865 519,172 6,230,0641-Jul-01 02-07-07 29,708,666 441,273 5,295,2767-Jul-01 04-06-26 26,364,853 594,023 7,128,27619 Mr. Justice (Retd) Riaz Kayani 6-Aug-01 03-02-15 23,770,477 519,173 6,230,076

Const. Petition No.127 of 2012 145202122Mr. Justice (Retd) GhulamMahmood QureshiMr. Justice (Retd) MansoorAhmadMr. Justice (Retd) PervaizAhmad8-Oct-01 04-04-10 23,119,482 519,172 6,230,0647-Mar-04 03-02-04 22,601,149 510,436 6,125,23210-Apr-04 02-01-05 26,222,120 583,356 7,000,27223 Mr. Justice (Retd) Farrukh Latif 10-Jun-05 03-03-05 23,143,378 606,077 7,272,92424252627282930313233343536Mr. Justice (Retd) Rustam AliMalikMr. Justice (Retd) Sh. AbdulRashidMst. Parveen Nawaz w/o Mr.Justice (Retd) MuhammadNawaz BhattiMr. Justice (Retd) MuhammadJahangir ArshadMr. Justice (Retd) Sh. JavaidSarfrazMr. Justice (Retd) MuhammadMuzammal KhanMr. Justice (Retd) TariqShamimMr. Justice (Retd) Fazal-e-Miran ChowhanMr. Justice (Retd) Syed AsgharHaiderMr. Justice (Retd) Sh. AhmadFarooqMr. Justice (Retd) Ch. ShahidSaeedMst. Shahnaz Ansari w/o Mr.Justice (Retd) Tanveer BashirAnsariMr. Justice (Retd) SagheerAhmad Qadri10-Sep-05 03-06-05 23,605,888 574,113 6,889,3561-Jun-06 02-08-28 22,297,141 571,932 6,863,18411-Jul-06 01-07-10 13,343,486 267,566 3,210,7924-Nov-07 02-11-02 20,578,426 488,459 5,861,50813-Feb-08 03-02-11 22,760,620 488,460 5,861,52029-Feb-08 04-05-27 22,096,799 488,459 5,861,50812-Oct-09 03-07-10 26,598,475 440,299 5,283,58811-Oct-09 04-10-09 24,587,585 440,299 5,283,58812-Oct-09 03-07-09 29,458,843 440,299 5,283,58810-Feb-12 01-11-20 26,826,640 436,235 5,234,8203-Oct-12 02-07-13 24,480,676 364,567 4,374,80426-Jun-05 04-01-few 9,102,366 188,768 2,265,21611-Feb-13 03-04-26 26,174,540 416,649 4,999,788Sub-Total (Lahore High Court) 858,135,924 17,384,647 208,615,764Peshawar High CourtS.No.1Name of Hon'ble Judge/ orwidows of Hon'ble JudgesWidow of late Justice (Retd)Sher Bahadar KhanDate ofretirement/resignation/removalActualLength ofService(Y-M-D)Total PensionDrawnincludingCommutationPer monthPensionAnnualPensionAmount1-Jun-94 03-8-14 7,919,104 256,277 3,075,324234Mr. Justice (Retd) Raza AhmadKhanMr. Justice (Retd) MuhammadKhiyar KhanMr. Justice (Retd) Shah AbdurRashid6-Mar-92 03-5-04 25,648,302 535,132 6,421,58418-Nov-94 04-00-13 14,269,686 267,566 3,210,7922-Dec-84 04-07-05 23,111,683 535,710 6,428,5205 Mr. Justice (Retd) Salim Khan 1-Jan-08 02-11-28 23,740,207 407,359 4,888,308678Mr. Justice (Retd) Abdul AzizKundiMr. Justice (Retd) HamidFarooq DurraniMr. Justice (Retd) MuhammadAzam Khan1-Jan-11 01-3-24 36,132,633 331,918 3,983,0163-Nov-09 03-06-28 39,701,383 321,762 3,861,14427-Jan-00 01-07-14 23,818,108 519,172 6,230,064

Const. Petition No.127 of 2012 1469101112131415161718Mr. Justice (Retd) Fazal-ur-RehmanMr. Justice (Retd) Salim DilKhanMr. Justice (Retd) MuhammadRaza KhanMr. Justice (Retd) AttaullahKhanMr. Justice (Retd) MuhammadDaud KhanMr. Justice (Retd) Said MaroofKhanMr. Justice (Retd) RajMuhammad KhanMr. Justice (Retd) AbdurRehman Khan KaifMr. Justice (Retd) Qazi Hamidud DinMr. Justice (Retd) Miftah-ud-Din Khan1-Mar-07 04-05-18 18,513,679 208,667 2,504,0041-Oct-96 02-09-16 13,599,009 260,437 3,125,2448-Aug-08 03-07-04 26,189,176 481,828 5,781,9364-Jun-12 02-08-26 36,224,227 311,595 3,739,1401-Jan-82 04-11-11 17,510,692 267,566 3,210,7922-Nov-09 03-06-29 30,864,089 399,655 4,795,86015-May-08 02-01-11 24,930,879 390,558 4,686,69627-Jul-91 03-07-08 11,782,192 225,794 2,709,52811-Oct-96 02-08-26 23,587,385 456,045 5,472,54003-05-05 0Sub-Total (Peshawar High Court) 397,542,434 6,177,041 74,124,492Balochistan High CourtS.No.1Name of Hon'ble Judge/ orwidows of Hon'ble JudgesMr. Justice (Retd) TariqMehmoodDate ofretirement/resignation/removalActualLength ofService(Y-M-D)Total PensionDrawnincludingCommutationPer monthPensionAnnualPensionAmount17-Apr-02 01-07-04 22,186,772 489,133 5,869,5962.Mr. Justice (Retd) MehtaKelash Nath Kohli25.8.2009 04-08-10 23,979,696 519,536 6,234,432Sub-Total (Balochistan High Court) 46,166,468 1,008,669 12,104,028Sindh High CourtS.No.1Name of Hon'ble Judge/widows of Hon'ble JudgesMr. Justice (Retd) GhulamMuhammad KourejoDate ofretirement/resignation/removalActualLength ofService(Y-M-D)Total PensionDrawnincludingCommutationPer monthPensionAnnualPensionAmount31-Jul-82 02-02-14 22,807,356 350,546 4,206,55223Mr. Justice (Retd) Munawar AliKhanMr. Justice (Retd) MuhammadAslam Arain19-Jun-86 04-06-12 22,546,187 350,546 4,206,55211-May-95 04-06-00 24,750,995 457,234 5,486,8084 Mr. Justice (Retd) Majida Rizvi 18-Jan-99 04-07-12 23,635,293 441,274 5,295,288567Mr. Justice (Retd) Dr. GhousMuhammadMr. Justice (Retd) AmanullahAbbasiMr. Justice (Retd) Abdul GhaniSheikh26-Jan-00 04-09-16 23,675,698 441,273 5,295,2764-Mar-00 04-11-23 23,552,083 441,274 5,295,28811-Nov-00 03-00-13 24,156,529 519,173 6,230,0768 Mr. Justice (Retd) S.A. Rabbani 5-Jun-02 03-01-16 26,034,663 515,350 6,184,2009Mr. Justice (Retd) M. SadiqLeghari30-Jun-06 03-10-03 25,118,860 502,245 6,026,94010 Justice (Retd) Mrs. Qaiser Iqbal 11-Oct-09 03-11-16 28,631,048 503,199 6,038,388

Const. Petition No.127 of 2012 14711121314Mr. Justice (Retd) NadeemAzher SiddiquiMr. Justice (Retd) MunibAhmed KhanMr. Justice (Retd) Ali Sain DinoMetloMr. Justice (Retd) ShahidAnwar Bajwa11-Oct-09 03-11-16 29,358,946 362,400 4,348,80011-Oct-09 03-11-16 22,790,717 414,172 4,970,06411-Oct-09 03-11-16 27,786,518 414,172 4,970,0644-Oct-12 03-00-19 20,440,437 303,806 3,645,672Sub-Total (Sindh High Court) 345,285,330 6,016,664 72,199,968Grand Total 1,647,130,156 32,604,359 391,252,308(Note: All the details and particulars incorporated in this chart are based on the data collected fromthe case record and the statement of accounts furnished before this Court by the office ofAccountant Generals of all the four Provinces, thus, any reference to above chart in this judgmentshall not be deemed as final adjudication as regards facts and figures incorporated therein.)94. Now taking up the issue of applicability and effect of thisjudgment after the implementation of judgment under challenge,so as to see whether it should have prospective or retrospectiveapplicability, the first thing to be noted is that in our short orderdated 11.4.2013 we have declared that the law enunciated in thejudgment under challenge is “per incuriam”. The fallout of suchdeclaration is that it is a judgment without jurisdiction, thus, forall intent and purposes not to be quoted as precedent, rather liableto be ignored. A useful discussion on the concept and import of“per incuriam” finds place in the case of Sindh High Court BarAssociation (supra), which reads as under:-“(ii) MAXIM "PER INCURIUM".37. `Incuria' literally means "carelessness". In practice per incuriumis taken to mean per ignoratium and ignored if it is rendered inignoratium of a statute or other binding authority.38. What is mean by giving a decision per incurium is giving adecision when a case or a statute has not been brought to the attentionof the court and they have given the decision in ignorance orforgetfulness of the existence of that case or that statute or forgetfulnessof some inconsistent statutory provision or of some authority binding onthe court, so that in such cases some part of the decision or some step inthe reasoning on which it was based was on that account demonstrablywrong, so that in such like cases, some part of the decision, or some stepin the reasoning on which it is based, is found, on that account to be

Const. Petition No.127 of 2012 148demonstrably wrong. See Nirmal Jeet Kaur's case {2004 SCC 558 at 565para 21), Cassell and Co. Ltd.'s case (LR 1972 AC 1027 at 1107, 1113,1131), Watson's case {AELR 1947 (2) 193 at 196, Morelle Ltd.'s case (LR1955 QB 379 at 380), Elmer Ltd.'s case {Weekly Law Reports 1988 (3)867 at 875 and 878), Bristol Aeroplane Co.'s case {AELR 1944 (2) 293 atpage 294} and Morelle Ltd.'s case {AELR 1955 (1) 708).39. The ratio of the aforesaid judgments is that once the Court hascome to the conclusion that judgment was delivered per-incurium thenCourt is not bound to follow such decision on the well known principlethat the judgment itself is without jurisdiction and per-incurium,therefore, it deserves to be over-ruled at the earliest opportunity. In suchsituation, it is the duty and obligation of the apex Court to rectify it. Thelaw has to be developed gradually by the interpretation of theConstitution then it will effect the whole nation, therefore, this Court, asmentioned above, is bound to review such judgments to put the nationon the right path as it is the duty and, obligation of the Court in view ofArticle 4, 5 (2) read with Article 189 and 190 of the Constitution.”95. Apart from the above, it will be seen that there can be notwo views about the powers of legislature to legislate any law andto make it applicable prospectively or retrospectively or from anyparticular date, with clear/express intendment in this regard.However the procedural law, even though not expressly providedfor, normally holds its applicability retrospectively as no one canclaim vested right in the matter of procedure. There are number ofprecedents where the law has been so legislated or amended andmade applicable retrospectively to destroy the vested rights ofcertain individuals and such actions when challenged, have beenupheld by the Court, to be legal. If any case law is needed to fortifythis view, reference can be made to the case of Asad Ali (supra) asunder:-“135. It is a well-settled law that a new or an amending statutetouching the, vested rights of the parties operates prospectivelyunless the language of the legislation expressly provides for itsretrospective operation. However, the presumption against theretrospective operation of a statute is not applicable to statutesdealing with the procedure as no vested right can be claimed byany party in respect of a procedure. The only exception to the

Const. Petition No.127 of 2012 149retrospective operation of a procedure law is that if by giving it aretrospective operation, the vested right of a party is impairedthen to that extent it operates prospectively. The above principlesapplicable to a new or an amending statute, however, cannot beapplied strictly to the law declared by the Courts throughinterpretative process. The Courts while interpreting a law do notlegislate or create any new law or amend the existing law. Byinterpreting the law, the Courts only declare the true meaning ofthe law which already existed. Therefore, to that extent the lawdeclared by the Court is applicable from the date the law isenacted. However, as under the Constitution only the decision- ofthis Court on a question of law or in so far it enunciates aprinciple of law is binding on all Courts, and Authorities, thepossibility that a provision of law or Constitution before it cameup for interpretation before this Court, was interpreted orunderstood differently could not be ruled out. Therefore, if as aresult of interpretation of a law or a Constitutional provision bythis Court, the existing interpretation or meaning of the law ischanged, then it is more of a matter of public policy based onjustice, equity and good conscious than a rule of law, that aninnocent person who acting bona fidely on the prevailinginterpretation or meaning of law created a liability or acquired aright, be protected against the change brought about in theexisting state of law as a result of its interpretation by this Court.However, where a person or authority acts in defiance of a clearprovision of law or Constitution or the interpretation by the Courtdoes not have the effect of changing the prevailing understandingof the meaning of the provision of law or the Constitution, thequestion of, protecting any one against the effect of suchinterpretation by the Court on the principle that the effect ofinterpretation by given prospective operation, does not arise. Forexample, if a particular provision of law or the Constitution hasnot come up for interpretation before any Court and thefunctionaries responsible for giving effect to it have consistentlyinterpreted the said provision and understood it in a particularscene and acted upon it accordingly over a length of time, but allof a sudden the functionaries decide to follow a new practice bychanging the interpretation of that provision. However, when thematter is brought before the Court, the solitary deviation by thefunctionaries made on the basis of changed interpretation isstruck down by the Court as illegal and unconstitutional and theprevious interpretation and practice followed by the functionariesis upheld being in accordance with the law and Constitution. Inthat event, neither the functionaries nor the person deriving anybenefit on the basis of the new practice founded on the changedinterpretation of the provision of law or the Constitution could

Const. Petition No.127 of 2012 150defend the illegality or unconstitutionality of the action on theprinciple that the interpretation given by the Courts be appliedprospectively and not retrospectively, as in such a case the Courtis striking down the very first deviation of the functionaries on theground that the deviation from the previous practice/interpretation is illegal and unconstitutional. The principle thatthe change in the state of law as a result of interpretation by thisCourt is to be given effect to from the date the Court interpretedthe law is also not applicable in those cases which could bebrought under challenge in accordance with the law before orafter the interpretation of the provision by this Court. Evenotherwise, as pointed out by us earlier, this Court while adoptingan interpretation of the provision of the law or the Constitutionwhich is at variance from the existing view, it is only declaring thecorrect law as an apex Court. By doing so, it neither legislates anynew law nor amends the existing law. Therefore, whileinterpreting a provision of law or the Constitution, this Court canalso provide the date from which the interpretation given by it isto come into effect, keeping in view the nature of the provision itis interpreting, the likelihood of possible prejudice which may becaused to an individual or a body of individual and therequirement of justice in the case.”[Also see: Golak Nath v. State of Punjab (AIR 1967 SC 1643) andMessrs Haider Automobile Ltd v. Pakistan (PLD 1969 SC 623)]96. Similarly, depending upon the facts and circumstances ofa case, the Supreme Court, having vast powers, while delivering itsjudgment or making an order can lay down the parameters for itsimplementation including the option of its retrospectiveapplicability from any particular date, so as to make sure itseffective fallout, as the situation in a particular case may demand.For doing so, one of the underlining principle is “Actus CuriaeNeminem Gravabit” (an act of the Court shall prejudice no man).As, no body should suffer due to any act, omission or mistake ofthe Court. Similarly no body should take undue advantage orbenefit of any act, omission, mistake or legal error committed bythe Court and to avoid adverse effect of such judgment, powers areto be exercised by the Court in the manner to save it from

Const. Petition No.127 of 2012 151becoming an abuse of the process of law. In the presentproceedings as highlighted earlier, due to judgment underchallenge public exchequer has been unjustly burdened with theliability of Rs.1,647,130,156/-,besides additional payment ofRs.32,604,359/- towards monthly pension, thus, in all fairnesssuch mistake of law is to be cured in a manner to repair such hugefinancial loss to the public exchequer.97. While discussing the fallout of the judgment underchallenge having been declared per incurium, we find that thisCourt, in exercise of its jurisdiction under Articles 184(3), 187 and188 of the Constitution, in order to do complete justice and stick tothe norms of equity and fair play is not denuded of its powers toorder implementation of this judgment retrospectively from thedate of the judgment under challenge. Dilating further upon themaxim “Actus Curiae Neminem Gravabit” (an act of the Courtshall prejudice no man), we find that concept of “ prejudice noman” visualized in it, includes not only individual parties beforethe Court but also any juristic person such as corporations, banks,government functionaries, including Federal or ProvincialGovernment. Thus, in the instant proceedings due to the act ormistake of the Court no prejudice should be caused to the interestof the Federal or Provincial Government like any other ordinarylitigant before the Court. Moreover, when we have declared thejudgment under challenge “per incurium”, its natural fallout is thatwhosoever has availed its benefit in any form he is bound torestore it in favour of the other, whose interest has been prejudiceddue to such act of the Court. It is also to be noted here that all thesums so paid by the Government to honourable retired judges,exceeding Rs.1.64 billion (Rs.1,647,130,156/-) have been paid

Const. Petition No.127 of 2012 152from the public exchequer, which is otherwise a sacred publictrust, therefore, its improper use or mishandling in any form is tobe checked and controlled at all costs.98. The discussion made in the last two paragraphs of thisjudgment gains full support from the case of South EasternCoalfields Ltd. v. State of M.P. (AIR 2003 SC 4482), wherein afterdetailed discussion with reference to several other cases on thedoctrine of “actus curiae neminem gravabit”, the Indian SupremeCourt observed as under:-“26. That no one shall suffer by an act of the Court is not a ruleconfined to an erroneous act of the Court; the ‘act of the court’embraces within its sweep all such acts as to which the court mayform an opinion in any legal proceedings that the Court would nothave so acted had it been correctly apprised of the facts and the law.The factor attracting applicability of restitution is not the act of theCourt being wrongful or a mistake or error committed by the court;the test is whether on account of an act of the party persuading theCourt to pass an order held at the end as not sustainable, hasresulted in one party gaining an advantage which it would not haveotherwise earned or the other party has suffered an impoverishmentwhich it would not have suffered but for the order of the Court andthe act of such party. The quantum of restitution, depending on thefacts and circumstances of a given case, may take into considerationnot only what the party excluded would have made but also whatthe party under obligation has or might reasonably have made.There is nothing wrong in the parties demanding being placed in thesame position in which they would have been had the Court notintervened by its interim order when at the end of the proceedingsthe Court pronounces its judicial verdict which does not match withand countenance its own interim verdict. Whenever called upon toadjudicate, the Court would act in conjunction with what is the realand substantial justice. The injury, if any, caused by the act of theCourt shall be undone and the gain which the party would haveearned unless it was interdicted by the order of the court would berestored to or conferred on the party by suitably commanding theparty liable to do so. Any opinion to the contrary would lead tounjust if not disastrous consequences. Litigation may turn into afruitful industry. Though litigation is not gambling yet there is anelement of chance in every litigation. Unscrupulous litigants mayfeel encouraged to approach the Courts, persuading the court to

Const. Petition No.127 of 2012 153pass interlocutory orders favourable to them by sues are yet to beheard and determined on merits and if the concept of restitution isexcluded from application to interim orders, then the litigant wouldstand to gain by swallowing the benefits yielding out of the interimorders even though the battle has been lost at the end. This cannotbe countenanced. We are, therefore, of the opinion that thesuccessful party finally held entitled to a relief assessable in terms ofmoney at the end of the litigation, is entitled to be compensated byaward of interest at a suitable reasonable rate for the period forwhich the interim order of the Court withholding the release ofmoney had remained in operation.”[Also see: Jai Berham v. Kedar Nath Marwari (AIR 1922 P.C 269)]99. Besides, it is germane to observe here with reference tothe arguments of some learned ASCs, insisting for only prospectiveapplicability of this judgment, that this Court has not legislated orlaid down any new law through its judgment in hand, but onlyinterpreted and enunciated correctly an existing law, which is inforce in the form of Article 205 of the Constitution with its FifthSchedule and President’s Order 3 of 1997, since the year 1973 and1997 respectively. Therefore, premised on these admitted factsthere is no tenable legal ground to hold the applicability of thisjudgment prospectively and not retrospectively, so as to curb themischief of earlier erroneous enunciation/interpretation of law.100. From the earlier discussion as regards the scope andapplicability of paragraph No.29 of President’s Order 3 of 1997 (asreproduced earlier) read with regulation No.423 of CSR, we findthat, prima facie, the honourable retired Judges shown in theabove reproduced chart, at serial No.18,20,29,31 & 35 (M/sJustice Dr. Munir Ahmad Mughal, Justice Ghulam MahmoodQureshi, Justice Muhammad Muzammal Khan, Justice Fazal-e-Miran Chowhan, and Mst. Shahnaz Ansari w/o Late JusticeTanveer Bashir Ansari) from the Lahore High Court; serial No.9 & 13(M/s Justice Fazal-ur-Rehman, and Justice Muhammad Daud

Const. Petition No.127 of 2012 154Khan) from the Peshawar High Court; serial No.2 (Mr. JusticeMehta Kelash Nath Kohli) from the Balochistan High Court; and,serial No.4,5&6 (M/s Justice Majida Rizvi, Justice Dr. GhousMuhammad, and Justice Amanullah Abbasi) from the Sindh HighCourt, having actually served for different periods, but for morethan four years or four years nine months (as the case may be) ineach case and in some cases just few days less than five years, areeligible to lay their claim for pensionary benefit before thecompetent authority (President) by following due process of law inline with paragraph-29 of President’s Order 3 of 1997 andapplicable regulation No.423 of CSR, which reads as under:-“423. (1) A deficiency of a period not exceeding six months in thequalifying service of an officer shall be deemed to have beencondoned automatically.(2) The authority competent to sanction pension maycondone a deficiency of more than six months but less than ayear subject to the following conditions, namely:-(a) The officer has died while in service, or has retiredunder circumstances beyond his control, such ason invalidation or the abolition of his post, andwould have completed another year of service if hehad not died or retired.(b) The service rendered by him had beenmeritorious.”101. However, those honourable retired judges of the HighCourt, who have retired as such before coming into force ofPresident’s Order 3 of 1997 on 12.2.1997, for the purpose ofmaking up similar deficiency will be governed by the proviso toparagraph-13(c) of President’s Order 9 of 1970, providing formaking up deficiency upto three months or less and not byparagraph-29 of the President’s Order 3 of 1997 read withregulation No.423 of CSR. We, therefore, expect that if any such

Const. Petition No.127 of 2012 155representations or fresh representations are made by thehonourable retired judges qualified under either of the twocategories of retired judges, before the President of Pakistan, hewill decide the same within two month so as to fairly adjudicateand safeguard the interest of these honourable retired Judges inaccordance with applicable law.102. Since during his arguments, Mr. Munir A. Malik, learnedSr. ASC made reference to a subsequent judgment of the HighCourt of Sindh dated 1.7.2008, in C.P No.D-24/2002 (Re: Mrs.Majid Rizvi v. Federation of Pakistan and others) relating to thesame controversy, passed in favour of one honourable retiredJudge of the High Court and also placed on record copy of saidPetition under Article 199 of the Constitution, alongwith the copyof judgment passed therein, it became imperative for us to discussthis aspect of the case also. A perusal of contents of the saidpetition reveals that though in the petition a reference to the earlierjudgment of a Division Bench of the High Court dated 02.2.1995 inC.P No.D-2308/1994 (Re: Ahmed Ali U. Qureshi v. Federation ofPakistan and others) was made, but the prayers made by thepetitioner were for seeking directions to the President of Pakistanfor condonation of deficiency in her length of service and todetermine the payable pension of the petitioner as a retired judgeof the High Court notwithstanding her length of service; as beforeher retirement she had served as a Judge of the High Court for aperiod of 04-years, 07-months and 12-days. The learned DivisionBench of the High Court, while passing its judgment dated1.7.2008, had not made any independent discussion on the meritsof the contentions raised before it by the petitioner, but simply

Const. Petition No.127 of 2012 156placed reliance upon the judgment under challenge dated6.3.2008, which was referred before it. In such circumstances, itgoes without saying that as the above referred judgment has nowbeen declared per incuriam, therefore, as its corollary, thejudgment dated 1.7.2008 in C.P No.D-24/2002, is also liable to beset aside and the petition has to be dismissed. We accordinglyorder so. However, it will be open for the honourable retiredJustice Majida Rizvi that she may apply afresh to the President ofPakistan for availing the benefit of relevant provisions of PresidentOrder No.3 of 1997 applicable to her case; paragraph-29 whereof,read with regulation No.423 of CSR, inter alia, provides forautomatic making up of deficiency in the length of service upto sixmonths.103. As some of the learned ASCs on behalf of the HonourableRetired Judges have also attempted to present their case on thecardinal principle of independence of judiciary, including financialindependence, and National Judicial Policies (NJP) 2009 and 2012,we may mention here that indeed the “JUDICIARY”, as a thirdpillar of the State needs to be independent in all respects,including its financial matters, but at the same time suchindependence is subject to the mandate of the Constitutionalprovisions. A bare reading of Part VII Chapters 1 to 4 i.e. Articles175 to 212 together with Article 2-A and some other relevantconstitutional provisions define such independence of thejudiciary, thus, it cannot be argued that the issue regarding rightto pension for retired Judges of the High Court, which is thecrucial point under consideration in the present proceedings, hasas such any nexus to the financial independence of judiciary as a

Const. Petition No.127 of 2012 157institution. Similarly, reference to National Judicial Policies 2009 &2012 confer or create no right to pension beyond the intent of thelegislature, as evident from the plain reading of Article 205 readwith Fifth Schedule of the Constitution and the applicablePresident’s Orders 9 of 1970 or 3 of 1997.104. Apart from various Constitutional provisions andPresidential orders reproduced and discussed above, some of thelearned ASCs have also made reference of other Presidential OrdersNos.1 of 1968, 5 of 1983, 3 of 1990, 2,6,7 & 9 of 1991, 1 & 2 of1993, 1&2 of 1994, 3&5 of 1995, 2 of 1997, 1,2&3 of 1998, 2&3 of2000, 1,2&3 of 2001, 2 of 2004, 1 to 4 of 2005, and 2&3 of 2006.However, in our opinion, in so far as the issue regarding review ofjudgment under challenge is concerned except interpretation ofrelevant Constitutional provisions and President’s Orders 9 of 1970and 3 of 1997, on the subject of right to pension of honourableretired Judges of the High Court, having less than five years actualservice as such, no detailed discussion on these Presidential Ordersis required. More so, as all these President’s Orders relate to theincrease in salaries and other benefits of the judges of the superiorjudiciary or grant of some additional facilities to them from time totime while in actual service or after retirement, as the case may be.But have no nexus to the determination of right to pension by thePresident in terms of paragraph-2 of the Fifth Schedule to Article205 of the Constitution.105. When we look at the individual cases of some of thehonourable retired Judges of the High Court, we find that M/sMian Saeed ur Rehman Farrukh and Khan Riaz-ud-Din Ahmad,JJ, are the two affectees of judgment of the Apex Court in the case

Const. Petition No.127 of 2012 158of Al-Jehad Trust, (supra). In this case when the question ofappointment of judges in the superior judiciary came up forconsideration before a five member Bench, inter alia, followingdiscussion was made:-“The independence of Judiciary is inextricably linked andconnected with the constitutional process of appointment ofJudges of the superior Judiciary. The relevant constitutionalprovisions are to be construed in a manner which would ensurethe independence of Judiciary. A written Constitution is anorganic document designed and intended to cater the need for alltimes to come. It is like a living tree, it grows and blossoms withthe passage of time in order to keep pace with the growth of thecountry and its people. Thus, the approach, while interpreting aconstitutional provision should be dynamic, progressive andoriented with the desire to meet the situation, which has arisen,effectively. The interpretation cannot be a narrow and pedantic.But the Court's efforts should be to construe the same broadly, sothat it may be able to meet the requirement of ever changingsociety. The general words cannot be construed in isolation butthe same are to be construed in the context in which, they areemployed. In other words, their colour and contents are derivedfrom their context.The above principles will have to be kept in view whileconstruing the provisions of the Constitution relating to theappointments/transfers of Judges of the superior Judiciary.Courts, while construing a constitutional provision, canpress into service an established constitutional convention inorder to understand the import and the working of the same, if itis not contrary to the express provision of the Constitution.”More over, as regards few earlier appointments of the judges in theHigh Courts, which were found to be violative of the scheme of theConstitution, some parameters were laid down and followingdirections were issued:-That upon the appointment of the permanent ChiefJustices in the High Courts where there is no permanentincumbent or where there are permanent incumbents already,they shall process the cases of the High Courts' Judges in termsof the above declaration No. 13 within one month from the date ofthis order or within one month from the date of assumption ofoffice by a permanent incumbent whichever is later in time and to

Const. Petition No.127 of 2012 159take action for regularising the appointments/confirmation of theJudges recently appointed/confirmed inter alia of respondentsNos.7 to 28 in Civil Appeal No.805/95 in the light of this shortorder. In like manner, the Chief Justice of Pakistan will takeappropriate action for recalling permanent Judges of the SupremeCourt from the High Courts where they are performing functionsas Acting Chief Justices and also shall consider desirability ofcontinuation or not of appointment in the Supreme Court of AdHoc/Acting Judges.106. This being the position, despite their effective service asAdditional Judges or otherwise for any period, since theirappointments were neither legal nor regularized, they cannot beeven considered as Judges of the High Court. Besides, calculationsas regards their actual period of service as retired judges of theHigh Court, made by the learned Sr. ASC during his arguments, tobring their case within the category of Judges, who have served asa Judge of the High Court for five years or more, are entirelymisconceived, inasmuch as, from no stretch of imaginationintervening period, when they had not served as High Courtjudges, could form part of their actual period of service for thepurpose of such relief.107. Arguments of some of the learned Sr. ASCs with referenceto the observations of this Court contained in paragraph No.178 ofthe judgment in the case of Sindh High Court Bar Association(supra) are also without force, as applying the principle of exerciseof de facto jurisdiction, only judicial proceedings were saved, butthese observations had not conferred or blessed any sanctity to thefindings in the judgments passed during such proceedings norprotected them from being challenged in accordance with law. Tomake this view more clear the relevant paragraph No.178 isreproduced as under:-

Const. Petition No.127 of 2012 160178. However, the judgments and orders passed, and proceedingstaken in the cases of other litigants involving their rights andinterests in civil, criminal and other matters, any functionperformed under the Constitution including administering of oathto the President, and other acts, whether administrative orfinancial, done or performed by Abdul Hameed Dogar, J, andsuch other Judges or by any authority, or by any person, whetherin the Supreme Court or a High Court, which were passed, taken,done or performed, or purported to have been passed, taken,done or performed under the Constitution or law from 3rdNovember, 2007 to 31st July, 2009, i.e. the date of this judgmentwould not be affected on the principle laid down in Asad Ali's case(supra).108. Considering the claim/case of the widows/legal heirs ofsome of the Honourable Retied Judges, we may mention here thatthe ratio of judgment under challenge is of no help to their claim,as their cases are to be dealt with by the President strictly in termsof paragraphs No.4 to 6 relating to the Supreme Court and theHigh Court in the Fifth Schedule to Article 205 of the constitution.109. Inspired by the maxim “salus populi est suprema lex”(public welfare is the supreme law), to which all other maxims ofpublic policy must yield, another important aspect of the case, onwhich much arguments have not been advanced by the learnedASCs is that as a result of judgment under challenge, erroneouslygiving it a status of judgment in rem, this Court has hugelyburdened the public exchequer with uncalled for financial liability.Therefore, being custodian of public interest and public welfare,looking at this controversy from another angle, we consider it just,fair and equitable to treat these proceedings as public interestlitigation to protect the rights of every citizen of this country quapublic exchequer and to lay down correct law for this purpose.110. While arguments with reference to principle of past andclosed transaction were being advanced before us repeatedly, wealso enquired from the learned ASCs as to whether such principle,

Const. Petition No.127 of 2012 161if at all found applicable to the present case, should not have beenin the first place conversely made applicable to the case of thosehonourable retired Judges of the High Court, who stood retiredduring the period from 1970 onwards upto the date of judgmentunder challenge, as they never agitated such claim during this longperiod after their retirement from time to time. None of the learnedASCs could offer any satisfactory reply to this query, except thatthe right to pension has accrued in their favour on the basis ofjudgment under challenge. This reply on their behalf is not onlyfrail and meritless but negates their other contention that right topension was otherwise available in their favour on the basis ofArticle 205 read with Fifth Schedule of the Constitution andPresident’s Order 9 of 1970 or President’s Order No.3 of 1997.Undeniably, the right to pension of every Judge of the High Courtis to be determined and regulated in terms of Paragraphs-2 and 3of Fifth Schedule to Article 205 of the Constitution, which is thebasic instrument for this purpose, together with applicablePresident’s Order No.9 of 1970 or 3 of 1997. Thus, the judgmentunder challenge confers no independent right to pension for them.Needless to mention here that where the superstructure is built onaltogether faulty factual or legal foundation, upon its removal, it isbound to collapse as a whole.111. Considering the question of indulgence or sympatheticconsideration of the case of the honourable retired Judges of theHigh Court, having been already benefited from the judgmentunder challenge, we cannot lose sight of the fact that the heavysums paid to them, as partly reflected in the above reproducedchart, were made from public exchequer, which is a sacred trust.Thus all care and caution is required to see whether a mistake or

Const. Petition No.127 of 2012 162illegality committed by the Court could make them entitled forpayment of more than Rs.1,647,130,156/- and further liability ofpayment of Rs.32,604,359/- towards monthly pension. In view ofour discussion in this context made in the foregoing paragraphs,we have no option but to hold that all the sums paid to each of thehonourable retired judges, who were made entitled for pensionarybenefits in terms of the judgment under challenge, are liable to berecovered from them.112. It is necessary to mention here so as to make the thingsmore clear that admittedly before his retirement as a Judge of theHigh Court on 19.10.1994, retired Justice Ahmed Ali U. Qureshihad served as such for a period of 03-years and 04-months(approximately) and since by this judgment the ConstitutionalPetition No.D-2308 of 1994 filed by retired Justice Retied AhmedAli U. Qureshi before the High Court ofSindh has also beendismissed, therefore, all the benefits, except as per his entitlementas a retired District Judge qua paragraph 15 of President’s Order 9of 1970, availed under the said judgment of the Sindh High Courtand the judgment under challenge are to be recovered from thelegal heirs of the deceased to the extent of their liability in thisregard, but in accordance with law.113. There is yet another aspect of this case, which has beenargued before us by some of the learned ASCs and honourableretired Judges of the High Court, who were either elevated or hadresigned from their offices after the judgment under challenge.They had contended that since at the time of theirelevation/resignation judgment under challenge was in full forceapplicable, followed and implemented, therefore, valuable rightshave accrued in their favour on the principle of legitimate

Const. Petition No.127 of 2012 163expectancy which cannot be done away lightly by way of someobservations in this case. Indeed, such submissions of some of thenewly elevated or honourable retied Judges of the High Court arein line with the ratio of the judgment under challenge, but at thesame time it is to be noticed that the Honourable Judges, whohave resigned from their office before completion of minimum fiveyears actual service as such have to bless their own stars for thispurpose because their mere oral assertion that they had to resignfrom their office under compelling circumstances, cannot be legallyaccepted as a valid defence. As regards the other Judges, who havetaken oath of their office as High Court Judge after the judgmentunder challenge, suffice it to observe that since the said judgmenthas been declared per incurium, and become null and void,therefore, any claim based on the principle of locus poenitentiae orlegitimate expectancy cannot hold the field. More so, when as totheir right to pension honourable retired judges are to be governedby the law in force at the relevant time i.e. Article 205 of theConstitution read with its Fifth Schedule and President Order No.3of 1997, regarding which a detailed discussion has already beenmade in the preceding paragraphs of this judgment, and not by thedicta laid down in the judgment under challenge. The honourableretired judges of the High Court also cannot claim any benefit onaccount of its implementation by the respondents on the principleof past and closed transaction or on the principle estoppel, as onone hand it is a continuing liability over the public exchequer tothe tune of approximately Rupees Thirty million per month, thusgiving recurring cause of action; and, on the other hand, beingjudgment of the apex Court, the respondents had no option but toimplement it in its letter and spirit or to face penal consequencesof non-compliance, including contempt proceedings.

Const. Petition No.127 of 2012 164114. It is pertinent to mention here that the principle of locuspoenitentiae, which refrains from rescinding, if a decisive step istaken in furtherance of some action, is mainly confined toadministrative actions and not to the judicial pronouncements, asrescinding in the form of review, recalling, varying or amending theearlier order or judgment will have statutory backing in the form ofArticle 188 of the Constitution and section 21 of the General ClausesAct 1897. Thus, the principle of locus poenitentiae cannot placidlytake away the authority of the apex Court to undo a wrongoccasioned due to the act of the Court. If a contrary view of thematter is taken, then these provisions of law will become a farce,meant only for the purpose of academic discussion without power torepair the loss caused to an aggrieved party due to a judgment perincuriam, null and void in nature. Here, in order to understand theprinciple of locus poenitentiae more clearly, reference to the cases ofEngineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207) andAbdul Haq Indhar v. Province of Sindh (2000 SCMR 907), will also beuseful. In the case of Engineer-in-Chief Branch (supra), it was heldthat locus poenitentiae is the power of receding till a decisive step istaken but it is not a principle of law that order once passedbecomes irrevocable and past and closed transaction. If the orderis illegal then perpetual rights cannot be gained on the basis of suchan illegal order. In the other case of Abdul Haq Indhar (supra),discussing the principle of locus poenitentiae, provisions of section 21of General Clauses Act were also considered and it was affirmed thatthe authority which can pass an order, is entitled to vary, amend,add to or to rescind that order, as locus poenitentiae is the power ofreceding till a decisive step is taken, but it is not a principle of lawthat order once passed becomes irrevocable and past and closedtransaction. If the order is illegal then perpetual rights cannot be

Const. Petition No.127 of 2012 165gained on the basis of such an illegal order. Thus, mere bonafide ofthe beneficiaries of the judgment under challenge, as claimed, whichcarry a big question mark due to their legal background and postretirement conduct, as discussed earlier, is not enough to dilute theeffect of the judgment in hand.115. As regards the honourable retired judges of the High Court,who have opted to resign or have retired after the judgment underchallenge, here a reference to the case of Justice Hasnat AhmedKhan v. Federation of Pakistan/State (PLD 2011 SC 680) is alsonecessary wherein the consequence of unconstitutional P.C.O 1 of2007, dated 3.11.2007 qua it implications on the superior judiciarywere examined in detail with reference to an order passed by a sevenmember Bench of the Supreme Court on the same day, and asregards the judges who have either taken oath under the P.C.O 1 of2007 or had violated the said order of the Court dated 3.11.2007,following observations were made:-“Appellant and others shall be entitled for the service andpensionary benefits upto 20.4.2010 when 18 th ConstitutionalAmendment was passed; however if ultimately they are found to beguilty of contempt of the Court by the Supreme Court, their casesfor affecting the recovery of pensionary benefits in future shall bedealt with accordingly.”In these circumstances, to say that some judges of the High Court,who resigned from their office after the judgment under challenge,could legitimately claim right to pension without meeting thethreshold of minimum five years actual service, has no legalfoundation.116. As regards the issue of recovery of pensionary benefitsavailed by some honourable retired judges of the High Court interms of judgment under challenge, when we look at the recentpragmatic approach employed by this Court to safeguard publicinterest qua securing public exchequer, we find that in the case of

Const. Petition No.127 of 2012 166Syed Mehmood Akhtar Naqvi versus Federation of Pakistan (PLD2012 SC 1054) and Syed Mehmood Akhtar Naqvi versusFederation of Pakistan (PLD 2012 SC 1089), wherein declarationwas issued against number of elected MNAs, MPAs and Senatorsfor their disqualification from being Members of Majlis-e-Shoora(Parliament), Provincial Assemblies and the Senate, because ofholding dual nationalities and consequent disqualification underArticle 63(1)(c) of the Constitution, despite they having served theirrespective Institution (Parliament) during the intervening period,Court ordered that all these Members of the Parliament andProvincial Assemblies etc being declared disqualified are alsodirected to refund all monetary benefits drawn by them for theperiod during which they kept the public office and have drawntheir emoluments etc. from the public exchequer, including theremuneration, T.A./D.A., facilities for accommodation alongwithother perks which shall be calculated in terms of the money by theSecretaries of the National Assembly, Senate and ProvincialAssemblies accordingly.117. In another case of similar nature titled Muhammad Yasinversus Federation of Pakistan (PLD 2012 SC 132), relating toappointment of Chairman, OGRA, which was declared illegal andvoid ab inito, it was further ordered that all salaries, value ofperquisites and benefits availed from the date of his appointmenttill the date of the judgment shall be recovered by the Governmentfrom the beneficiary Chairman at the earliest. In contrast the factsof these two cases, the beneficiaries of judgment under challenge(the honourable retired judges of the High Court) during theintervening period have not worked or undertaken any assignmentso as to make their cases worth consideration for some concessionor relief on this ground.

Const. Petition No.127 of 2012 167118. The above discussed recent trend adopted by this Courtto safeguard public exchequer from being misused has persuadedus to follow a similar course in the present case. More so, as thisprinciple can not be deviated merely for the reason that this timethe affectees of this judgment are some honourable retired judgesof the High Court, who are very respectable citizens of the Country.Rather, adoption of this course in the present proceedings is all themore necessary to strengthen the inbuilt process of selfaccountability, which is necessary to earn public confidence in ourjudicial system.119. Leaving apart the principles of English jurisprudence quathe intricacies of the legal principles discussed hereinabove, when wesimply look at the principles of Islamic jurisprudence, having specialsignificance in our judicial system by virtue of Article 2-A of theConstitution, in the context of moot point No.(c) of paragraph-61(ibid), we find that there is no legal notion under the Islamicdispensation of justice, furnishing any reasonable justification for thehonourable retired judges of the High Court to retain the financialbenefits availed by them under the disguise of pension on the basis ofjudgment under challenge, which we have already declared perincuriam, null and void.120. While dealing with a lis at any level and in any form,every Court has to keep in mind the golden principle that all lawsin any form, may be constitutional provisions, includingfundamental rights provided in Part-II of the Constitution or thesub-Constitutional legislations of different nature are based on onebroad principle of equal dispensation of justice for all, for whichevery citizen of this country enjoys similar legal status, thus, hecannot be discriminated on any high moral ground. We have no

Const. Petition No.127 of 2012 168hesitation to further clarify that interest of public at large is to begiven priority and preference over the interest of individuals,therefore, interest of public at large cannot be sacrificed to extendprofane benefits to some individuals. Thus, to say that this Courtlooking to the peculiar facts and circumstances emerging from thejudgment under challenge, shall take a lenient view of the matterso as to protect the benefit of the judgment under challengealready availed by some honourable retired High Court Judges hasabsolutely no legal or moral force. As a matter fact, all honourableretired judges of the High Court, who had less than minimum fiveyears actual service to their credit as such and beneficiary ofjudgment under challenge, are legally and morally bound to restoreall such gains to the public exchequer so as to set an example forthe society about their high morals and conduct, which is expectedfrom all those who are supposedly role model for the society.121. Before parting with this judgment, we also record a noteof our appreciation for M/s Khawaja Haris Ahmed and SalmanAkram Raja, the two learned amici curiae appointed in this case,for their valuable assistance in this matter.JudgeJudgeJudgeIslamabad, the11 th April, 2013.Approved for reporting.ا‣JudgeJudge

169MIAN SAQIB NISAR, J.- Pursuant to the short orderdated 11.4.2013 consensually passed by this Bench in the notedmatter, my learned brother Anwar Zaheer Jamali, J. has composedthe detailed reasons. I have the privilege of going through suchexposition and to an extent agree thereto, however, with duedeference to the honourable Judge, where my reasons areotherwise or I hold an opinion different on any of the proposition(s)(involved herein), it shall be duly reflected in this discourse.2. The facts of the matter; the submissions made at thepodium by all the concerned and the laws cited in that context,have been extensively and elaborately given in the judgment of mylearned brother, however, still though at the cost of repetition, butwith an object to facilitate the comprehension of my presentdeterminant I shall make a brief mention of such facts which areabsolutely relevant, in that:- these proceedings having emanatedfrom a note dated 21.11.2012, put up by the Registrar of thisCourt to the Hon’ble Chief Justice of Pakistan stating therein, insome detail, the background of the verdict rendered by this Courtin Accountant-General, Sindh and others Vs. Ahmed Ali U.Qureshi and others (PLD 2008 SC 522) (hereinafter referred to as“The Judgment”) and specifying that, the entitlement of thepensionary rights (benefits) of the honourable retired Judges of theHigh Courts (hereinafter referred to as the Judges), in suchdecision, inter alia, have been based upon P.O.8/2007, which waspromulgated by the President of Pakistan on 14.12.2007, but suchorder (PO) has been declared unconstitutional, ultra vires and voidab initio vide judgment of this Court dated 31.7.2009 passed inSindh High Court Bar Association through its Secretary and

170another Vs. Federation of Pakistan through Secretary,Ministry of Law and Justice, Islamabad and others (PLD 2009SC 879), besides, “the judgment” otherwise is wrong in law,therefore, it was suggested “the matter is therefore of great publicimportance as huge public money is being expended without any legaljustification despite the fact that the basis of the judgment itself has lost itsvalidity. It is therefore a fit case for Suo Moto Review.”. Upon the said note,the Hon’ble Chief Justice passed an order dated 23.11.2012 to thefollowing effect:-“Perusal of the above note prima facie makes out a casefor examination of points raised therein. Therefore,instant note be registered as Suo Moto Misc. Petition andit may be fixed in Court in the week commencing from03.12.2012. Notice to Hon’ble Retired Judges, who arebeneficiaries of the judgment dated 6.3.2008 be issued.Office shall provide their addresses. Notice to AttorneyGeneral for Pakistan may also be issued.”This is how the noted matter has come up for hearing before theCourt and vide order dated 29.1.2013, the Bench seized of thematter, appointed M/s Makhdoom Ali Khan (not appeared), KhawajaHaris Ahmed and Salman Akram Raja, learned ASCs to assist theCourt as amicus curiae. In the context of the above, the epitome ofthe submissions made by all the concerned before the Court are:(1) whether the present proceedings are maintainable or otherwise;in this regard the authority/action of the Registrar of this Courtupon whose note these proceedings were initiated has beenseriously questioned (2) whether (in the context of maintainability) “thejudgment”, which was passed in the appellate jurisdiction of thisCourt under Article 185 of the Constitution, and/or under Article

171184(3) thereof can (or cannot) be reviewed, revisited and set aside bythis Court, in the instant suo moto proceedings (note: as while arguingfrom the Judges side it is the plea of almost all, that these proceedings predominantly have nexusto Article 184(3) of the Constitution) (3) whether these proceedings qualify (ordo not qualify) the test and the principles set out by law (including thelaw enunciated by this Court) for the purposes of review of a judgment,either under Article 188 of the Constitution or even whileexercising suo moto jurisdiction by this Court (4) whether “thejudgment” is founded upon valid, proper, due and correctconsideration, application and interpretation of relevant provisionsof law, i.e. Article 205 of the Constitution of Islamic Republic ofPakistan 1973 (hereinafter referred to as the Constitution) readwith the Fifth Schedule thereto, and various (certain) PresidentialOrders (5) whether a vested right(s) stand created in favour of theJudges on the basis of “the judgment”, which cannot be stultifiedvide the instant proceedings, even if “the judgment” is perincuriam, and such right(s) is protected by the rules of past andclosed transaction, the locus poenitentiae, and legitimateexpectation (6) whether in the facts of the matter any protection isavailable to the Judges on the rule of equality as enshrined byArticle 25 of the Constitution (7) without prejudice to the above, ifthis Court comes to the conclusion, that “the judgment” is perincuriam and thus it should be set aside, whether such decisionshall have prospective or retroactive effect. And the right of theJudges to receive pension in future shall not be affected onaccount of such (this) decision; and in any case, the amounts so farreceived by them, under “the judgment” cannot be directed in lawto be recovered (from them).

172MAINTAINABILITY(Questions No.1, 2 and 3)3. My learned brother has exhaustively dealt with thequestion of maintainability, which is a threshold proposition of thematter, and in this behalf extensive reference to the case law hasalso been made. I therefore have no intention to add anysuperfluity to that, however, my approach to the proposition isquite simple, plain and facile, in that, the Supreme Court ofPakistan is the apex Court of the country. It is the final, theutmost and the ultimate Court, inter alia, in relation to, (a)resolving disputes inter se the parties before it, (b) securing andenforcing the fundamental rights of the citizen/person, when those(rights) are in issue before the Court, in any of its jurisdiction,either original or appellate or suo moto, (c) the interpretation andthe enunciation of the law of the land, (d) examining and adjudgingthe legislative Acts and the executive order/actions of the State, inthe exercise of its power of judicial review, (e) the exercise oforiginal jurisdiction as per the mandate of Article 184 of theConstitution, (f) the advisory jurisdiction within the parameter ofArticle 186 of the Constitution, (g) the review of its decision(judgments) (see Article 188) (h) a special jurisdiction conferred upon thisCourt by any law. And above all the power to do complete justice(see Article 187). In terms of Article 189 of the Constitution, “Anydecision of the Supreme Court shall, to the extent that it decides question of lawor is based upon or enunciates a principle of law, (emphasis supplied) be binding onall other courts in Pakistan”. Moreover, according to Article 190 “Allexecutive and judicial authorities throughout Pakistan shall act in aid of theSupreme Court”.4. The aforestated legal position explains and highlights

173the true magnitude and the supremacy of this Court in regard tothe dispensation of justice in the country and the enunciation andthe declaration of the law by it. As the law laid down by the (apex)Court, and the order(s) passed by it, being the paramount andultimate in nature, has to be imperatively and mandatorilyfollowed, obeyed and adhered to by all the concerned. ReadingArticles 189 and 190 conjointly, and while keeping in view thescheme of the constitution, the very purpose, the pivotal positionand the status of this Court (prescribed above), it is expedient thatcorrect law should be pronounced by the apex Court. Andpursuant to the above object and due to the venerated position ofthis Court, the Court is cumbered with, inviolable responsibility,and a sacred duty, to interpret, declare and enunciate the lawcorrectly, so that it should be followed, obeyed and adhered topurposively and in letter and spirit, by all the other organs of theState (including all other Courts in Pakistan) strictly inconsonance with thetrue aim of the aforementioned Articles. It may be pertinent tomention here, that any invalid enunciation of law, shall contraveneand impugn the very character, and attribute(s) of this Court andsuch bad/wrong law shall cause drastic adverse affects on thesocio-economic, political, geographical, ethnic, cultural aspectsand dynamics of the nation, the society, the people at large and theState in presentee or in futurio. In the above context, reference canalso be made to Article 4 of the Constitution which enshrines (interalia) an inalienable right of every citizen to be dealt with inaccordance with the law, obviously this shall mean the law that is,correctly laid down by this Court. As it is a cardinal principle ofjustice, that the law should be worn by the Judge in his sleeves

174and justice should be imparted according to the law,notwithstanding whether the parties in a lis before the Court aremisdirected and misplaced in that regard. Therefore, if any lawwhich has been invalidly pronounced and declared by this Court,which in particular is based upon ignorance of any provisions ofthe Constitution, and/or is founded on gross and gravemisinterpretation thereof; the provisions of the relevant law havebeen ignored, misread and misapplied; the law already enunciatedand settled by this Court on a specific subject, has not been takeninto account, all this, inter alia, shall constitute a givenjudgment(s) as per incuriam; and inconsistent/conflicting decisionof this Court shall also fall in that category. Such decisionundoubtedly shall have grave consequences and repercussions, onthe State, the persons/citizens, the society and the public at largeas stated above. Therefore, if a judgment or a decision of this Courtwhich is found to be per incuriam (note: what is a judgment per incuriam hasbeen dealt with by my brother), it shall be the duty of this Court to correctsuch wrong verdict and to set the law right. And the Court shouldnot shun from such a duty (emphasis supplied). For the support of myabove view, I may rely upon the law laid down in the dicta Lt. Col.Nawabzada Muhammad Amir Khan Vs. The Controller of EstateDuty, Government of Pakistan, Karachi and others (PLD 1962SC 335 at page 340):-“Where, however, there is found to be something directedby the judgment of which review is sought which is inconflict with the Constitution or with a law of Pakistan,there it would be the duty of the Court, unhesitatingly toamend the error. It is a duty which is enjoined upon everyJudge of the Court by the solemn oath which he takes whenhe enters upon his duties, viz., to "preserve, protect and

175defend the Constitution and laws of Pakistan" But theviolation of a written law must be clear.”M. S. Ahlawat Vs. State of Haryana and another (AIR 2000 SC1680):-“15. To perpetuate an error is no virtue but to correct it isa compulsion of judicial conscience.”Bengal Immunity Co. Ltd., Vs. State of Bihar and others (AIR1955 SC 661):-“19. Reference is made to the doctrine of finality ofjudicial decisions and it is pressed upon us that we shouldnot reverse our previous decision except in cases where amaterial provision of law has been overlooked or where thedecision has proceeded upon the mistaken assumption ofthe continuance of a repealed or expired statute and thatwe should not differ from a previous decision merelybecause a contrary view appears to us to be preferable.It is needless for us to say that we should not lightlydissent from a previous pronouncement of this court. Ourpower of review, which undoubtedly exists, must beexercised with due care and caution and only foradvancing the public well being in the light of thesurrounding circumstances of each case brought to ournotice but we do not consider it right to confine our powerwithin rightly fixed limits as suggested before us.If on a re-examination of the question we come tothe conclusion, as indeed we have, that the previousmajority decision was plainly erroneous then it will be ourduty to say so and not to perpetuate our mistake even whenone learned Judge who was party to the previous decisionconsiders it incorrect on further reflection (emphasis suppliedby me).In Superintendent and Remembrancer of Legal Affairs, westBengal Vs. Corporation of Calcutta (AIR 1967 SC 997) it isheld:-

176“If the aforesaid rule of construction accepted by thisCourt is inconsistent with the legal philosophy of ourConstitution, it is our duty to correct ourselves and laydown the right rule (emphasis supplied by me). In constitutionalmatters which affect the evolution of our policy, we mustmore readily do so than in other branches of law, asperpetuation of a mistake will be harmful to publicinterests. While continuity and consistency are conducive tothe smooth evolution of the rule of law, hesitancy to setright deviations will retard it growth. In this case, as weare satisfied that the said rule of construction isinconsistent with out republican polity and, if accepted,bristles with anomalies, we have no hesitation toreconsider our earlier decision.”The question, however, shall be as to how this duty should bedischarged and the object of correcting the wrong law, and settingit (the law) right should be achieved. One of the obvious ways ofdoing so is, when a party to the lis seeks review of the wrongjudgment in terms of Article 188 of the Constitution. But what, ifthat remedy is not availed for any reason, or even if availed by theconcerned, is discarded by the Court (again by committing an another wrong).Whether thereafter, such a wrong decision on the point of law,cannot be remedied and interfered with, revisited or set aside at allor in other words, even if a judgment which is patently perincuriam, infinitely should be left outstanding, allowing it tobecome the liability of this Court and our legal/judicial system, forall future times. And the (this) Court and the system should befettered by it, and held as a captive thereto, leaving it intact topervade and permeate serious prejudice in perpetuity to thepersons/citizens of the country and even the State, compellingthem, to be dealt with by a wrong/invalid law, despite it havingcome to the notice of the Court, through any means whatsoever,

177that such decision suffers from patent and gross vice, and it isvividly a judgment per incuriam by all references. The answer is“No”. In my candid view the approach to leave such a decision tostay intact shall be ludicrous and shall lead to drastic effects asindicated above. Rather in such a situation this Court, havingspecial position in our judicature (judicial system as highlighted above)shall have the inherent, intrinsic and inbred power (jurisdiction)vested in it, (a) to declare a judgment per incuriam; (b) decline tofollow the same as a valid precedent, (c) and/or to set it aside. Forthe exercise of jurisdiction in that regard and for the discharge ofthe duty as mentioned earlier, it is absolutely irrelevant andimmaterial vide (via) which source it (decision) has come to the noticeof the Court. The Court once attaining the knowledge of such ablemished and flawed decision has the sole privilege, to examinethe same and to decide about its fate, whether it is per incuriam orotherwise. In this context, it may be mentioned, for example, ifwhile hearing some case, it is brought to the attention of the Courtby the member(s) of the Bar; or during the hearing of any matter,the Court itself finds an earlier judgment to be per incuriam; or if aJudge (Judge of this Court) in the course of his study or research,comes across any judgment which in his view is per incuriam or ifany information through the Registrar of the Court is passed on tothe honourable Chief Justice of the Court or to any other Judge (ofthis Court), by any member of the Bar, or the member of the civilsociety (any organization/group of the society) that a judgment is perincuriam (note: without the informant having any right or locus standi of hearing orthe audience, until the matter is set out for hearing in the Court and the Court deems itproper to hear him), the Court in exercise of its inherent suo moto

178power and the duty mentioned above (emphasis supplied) shall have thedue authority and the empowerment to examine such a judgment,in order to ascertain and adjudge if the law laid down therein isincorrect or otherwise. And if the judgment is found to be perincuriam, it shall be dealt with accordingly. In such a situation (asearlier stated) it shall not be of much significance, as to who hasbrought the vice of the judgment to the notice of the Court orthrough which channel it has reached there. Rather, the pivotalaspect, the object, the concern and the anxiety of this Courtshould be to examine the judgment and if it is per incuriam to setthe law right with considerable urgency.5. In the instant matter, as stated in the beginning, theseproceedings have genesis in the note put forth by the Registrar ofthis Court, to which serious objection has been raised from theJudges’ side; in this behalf it may be held that though there is nospecific provision in the Supreme Court Rules, 1980, enabling theRegistrar to put up such note to the honourable Chief Justice ofPakistan, but at the same time there is no bar or clog upon theRegistrar, being the principle officer of the court, not to bring to thenotice of the Chief Justice of Pakistan or the Court as the case maybe, that any decision earlier rendered by the Court is per incuriamor needs to be reviewed. Therefore, in view of what has beendiscussed, the objections about the maintainability of the presentproceedings and the jurisdiction of this Court are overruled. And itis categorically held that judgments/decisions of this Court whichare per incuriam are a class apart, to which the limitations or therider of the Review (Article 188) or of the provisions of Article 184(3)are inapplicable and not attracted. These Articles and the

179limitations thereof shall have no nexus for the exercise of theinherent jurisdiction of this Court and the discharge of its duty asprescribed above for the correction of the decisions per incuriam.Before parting with the topic, however, I feel urged to make areference to a full Court meeting of this Court, (presumably held on26.4.2010) in which pursuant to an agenda item, in the context ofconflicting judgments by various Benches of the Supreme Court,the office had put up a note envisaging that as the Supreme Courtprovides guidance to all the Courts in the country and itsjudgments are also binding upon them (Courts) thus, and anyconflict in its judgments shall have far reaching effect (note: obviouslyconflicting judgments, shall fall within the purview of per incuriam). Upon the abovenote, it was resolved by the full Court that the Librarian andR&ROs of the Court should carry out an exercise in the matter andpoint out instances of the conflicting judgments, and while doingso, they may consult with eminent lawyers to take benefit of theirexperience. Data should be prepared and the matter be placedbefore the Hon’ble Chief Justice of Pakistan, who may like toconstitute a larger Bench to resolve the conflicting issues. It wasfurther resolved, if during the course of hearing of any case, aninstance of conflicting judgments comes to the notice of the Bench,the Hon’ble Judges may refer the same to the Hon’ble Chief Justicefor constitution of a larger Bench to resolve the conflict. Thisresolution of the full Court duly fortify my above point of view, thatit is the duty of this Court to declare and discard a judgment asper incuriam and for this neither the source of its knowledge northe confines of ordinary Review and/or Article 184(3) are of muchrelevance.

180ENTITLEMENT TO PENSION(Question No.4)6. On the aspect of entitlement to the right of the Judgesto receive pension, I am of the view that for the purposes ofadjudging the same, and for the interpretation of the relevantprovision of the Constitution i.e. Article 205 and Fifth Schedulethereto, and the apposite Presidential Orders; the legislativehistory of the law on the subject; the nature and object of pension;the (constitutional) convention and previous practice, and thecontemporaneous understanding (prior to the case of Ahmed Ali U. Qureshi) ofthe law are quite germane factor (note: my brother has also highlighted the aboveconcept but may be differently). However, as the requisite history and thetext of laws has been comprehensively reproduced in the mainjudgment of my brother, therefore, by relying thereupon, I shallprimarily restrict to the interpretation of such provisions (note:however, whenever required a part of such text shall be reproduced), by makingreference to the laws in a chronological order.7. For the first time in the Subcontinent the honourableretired Judges of the High Court were held entitled to receivepension as per Article 221 of the Government of India Act, 1935,but the Article only prescribed that they “shall be entitled to such rights(emphasis supplied) in respect of leave and pension as may from time to time befixed (emphasis supplied) by His Majesty”. From the aforestated it is clearthat the authority and the prerogative for the fixation of theentitlement was conferred upon His Majesty; meaning thereby thatHis Majesty was mandated to fix i.e. assess and settle such rightand the entitlement. Pursuant to the above, the High Court JudgesOrder, 1937 was accordingly enforced on 18 th March, 1937, andvide clause 17 thereof, the right of pension was fixed, but restricted

181to those Judges only, who fulfilled the required criteria laidtherein, e.g. (relevant being) upon the completion of service tenure ofnot less than 12 years. There can be no cavil, that without theabove mandate of law, no retired Judge otherwise was entitled toreceive the pension. And for the purposes of acquiring said right,or in other words to qualify for the pension, the test and thecriteria prescribed in Order 1937 (ibid) was sine qua non, signifyingthat the right or entitlement to receive pension was subjected toand was conditioned by the requirement of a specific tenure. Afterthe emergence of Pakistan, the entitlement to pension of theJudges remained to be governed by the said laws (note: till 1956).However, Article 221 of the Indian Constitution 1949, prescribes“Every Judge shall be entitled to such allowances and to such rights in respect ofleave of absence and pension as may from time to time to be determined by orunder law made by Parliament and, until so determined, to such allowances andrights as are specified in the Second Schedule (emphasis supplied)”. It is manifestfrom the above that despite some change in language theentitlement again is dependent upon the determination by the law(note:- until the law, by Second Schedule). When the Constitution of 1956,was enforced in our country, the relevant provisions therein arequite analogous to the Indian provisions, inasmuch as quitesignificantly the Third Schedule thereto (of 1956 Constitution) stipulates“Every Judge of a High Court shall be entitled to such other privileges andallowances for expenses in respect of equipment and traveling upon firstappointment, and to such rights in respect of leave of absence and pension as maybe determined by the President (emphasis supplied by me).”The only main difference in the Indian provision and ourconstitutional dispensation was, that there (India) the determinationof entitlement by or under the law by Parliament was made,

182(otherwise by Schedule), while in Pakistan determination had to be made(done) by the President (note: and until then under Order 1937). After theabrogation of 1956, the Constitution 1962 came into force and asper relevant Article (it is prescribed) “124. Remuneration, etc., of Judges.—The remuneration and other terms and conditions of service of a Judge of theSupreme Court or of a High Court shall be as provided in the Second Schedule.”.The relevant part of the Schedule provides:-“2. Every Judge of a High Court of a Province shall beentitled to such privileges and allowances, and to suchrights in respect of leave of absence and pension, as may bedetermined by the President, and until so determined, to theprivileges, allowances and rights to which, immediatelybefore the commencing day, the Judges of the High Courtof the Province were entitled.”It is obvious from the above, that the authority, of determination ofthe entitlement to the pension of the Judges as per theConstitutional command, was conferred and bestowed upon thePresident, i.e. it shall be the President who shall decide, abouttheir entitlement. Pursuant thereto, Presidential Order P.O.1/1968was issued, prescribing (see clause 13) the qualifications and thecriteria for the said entitlement, which vividly and unmistakably isdependent upon the length of service of the Judges. Anyhow, onaccount of the annulment of the 1962 Constitution and uponproclamation of emergency on 25 th day of March, 1969, aProvisional Constitutional Order dated 14 th April, 1969, wasintroduced, whereunder the President of Pakistan enforcedP.O.9/1970, wherein the entitlement (right) of the Judges in respectof their pension was stipulated as under:-“13. Condition of admissibility of pension.—AJudge shall, on his retirement, resignation or removal, be

183paid a pension in accordance with the provisions of thisOrder if he has---(a) completed not less than five years of servicefor pension and attained the retiring age; or(b) completed not less than five years of servicefor pension and, before attaining the age,resigned; or(c) completed not less than five years of servicefor pension and, before attaining the retiringage, either resigned, his resignation havingbeing medically certified to be necessitatedby ill-health or been removed for physical ormental incapacity:Provided that, for the purpose of clause (a) of Part Iof the First Schedule a deficiency of three months or less inthe service for pension as Judge shall be deemed to havebeen condoned.”In the interim Constitution of Pakistan 1972 as per Article 207, theentitlement of every retired Judge remained conditional to thedetermination by the President (emphasis supplied).8. On the promulgation of the “the Constitution” no vitaland important change was introduced (therein) about theentitlement of the retired Judges, as no departure from the earlierlaw was visibly made. And Fifth Schedule (note: the interpretation of the FifthSchedule is critical) to Article 205 prescribed:-“1……………………………………………………....2. Every Judge of a High Court shall beentitled to such privileges and allowances, and to suchrights in respect of leave of absence and pension, as may bedetermined by the President, and until so determined, to theprivileges, allowances and rights to which, immediatelybefore the commencing day, the Judges of the High Courtwere entitled.3. The pension payable to a retired Judge ofthe Supreme Court shall not be less than Rs.1,500 per

184mensem or more than Rs.1,950 per mensem, depending onthe length of his service as Judge in that Court or a HighCourt:”However, by virtue of the Constitution (Twelfth Amendment) Act1991 dated 27.7.1991, Paragraph 3 was substituted to read asbelow:-“3. The Pension payable per mensem to a Judge of aHigh Court who retires after having put in not less thanfive years service as such Judge shall not be less or morethan the amount specified in the table below, dependingon the length of his service as Judge and total service, ifany, in the service of Pakistan:Provided that the President may, from time totime, raise the minimum or maximum amount of pensionso specified”Then came into force P.O.2/1993 on 19 th October, 1993 and it isquite significant to point out, that this P.O. has been issued underproviso to 3 rd Paragraph of the Fifth Schedule (Paragraph 3 which wasadded by aforestated twelfth amendment); in this regard the title of the P.O.reads as “Whereas, the proviso to third paragraph of the Fifth Schedule to theConstitution of the Islamic Republic of Pakistan relating to the remuneration ofthe Judges of the Supreme Court and High Courts provides that the Presidentmay, from time to time, raise the minimum or maximum amount of pension sospecified in the said paragraph”. Whereas the pension related part ofP.O.2/1993 is:-“2. Pension.---(1)…………………………………………...(2) The minimum and maximum monthly pension of theChief Justice of a High Court shall be Rs.9,800 andRs.12,250 respectively and that of every other Judge of aHigh Court shall be Rs.8,722 and Rs.10,902 respectively.”

185Finally P.O.3/1997 was enforced on 12.2.1997, which has beenissued under Paragraph 2 of the Fifth Schedule, and it containsthe provisions about the entitlement and the admissibility(emphasis supplied) of pension of retired Judges of the High Courts asbelow:-“14. Condition or admissibility of pension.—A Judgeshall, on his retirement, resignation or removal, be paid apension in accordance with the provisions of this Order ifhe has---(a)(b)(c)completed not less than five years of servicefor pension and attained the retiring age; orcompleted not less than five years of servicefor pension and, before attaining the age,resigned or sought retirement; orcompleted not less than five years of servicefor pension and, before attaining the retiringage, either resigned, his resignation havingbeing medically certified to be necessitatedby ill-health or been removed for physical ormental incapacity or been allowed by thePresident for sufficient cause to retire.”The above in a sequence accomplish the legislative history, inrespect of the genesis, and the evolution of the pensionary rightand the entitlement of the Hon’ble retired Judges of the HighCourts throughout. And as stated earlier it is in the context of thislegal backdrop and the development; the nature and purpose ofpension; the convention etc.; and contemporaneous understandingof the law, that the evaluation of the right/entitlement of pensionof the Judges should be made and the provision(s) of Article 205and Fifth Schedule thereof, and P.O.3/1997 (alongwith other relevant P.Os.)

186has to be applied and construed.9. Since the Government of India Act, 1935 which is theorigin of the retired Judge’s right to receive pension, and from allthe laws that have followed, it is vivid from the contents, the text,the letter and spirit thereof (such laws) that the said right is neitherabsolute nor unqualified. Here I would briefly mention that thepension is not the bounty from the State/employer to theservant/employee, but it is fashioned on the premise and theresolution that the employee serves his employer in the days of hisability and capacity and during the former’s debility, the lattercompensates him for the services so rendered. Therefore, the rightto pension has to be earned and for the accomplishment thereof,the condition of length of service is most relevant and purposive. Inthe case of the employments which are governed by the servicerules, there are provisions laying down the criteria and thequalification for that purpose; and where the employments areregulated by the contracts, it is so specified in the terms andconditions of such contracts. Until such qualifications are met andthe contractual stipulations are satisfied (note: as the case may be), noservant/employee is entitled to pension. And the Judges are noexception to the above rule. Therefore, a Judge per se on the basisof his appointment shall not become entitled to the pension, ratherhe has to earn that right by meeting the qualifications and byfulfilling the requirements stipulated by the legal instruments inforce at the relevant point of time (or from time to time). In all the lawsmentioned above, there are some very important words andexpressions which have been used, and for the comprehension andinterpretation of such provisions and for the purposes of resolving

187the issue, it is imperative that meaning of the words/expressionsshould be ascertained. The first in the chain is such, which means,that, as/that, of the type to be mentioned, or that kind;unmistakably meaning, that it is only that kind of the right whichhas been fixed and determined either by the law or the authoritydesignated in the law, therefore, these two words are of immenseimportance. According to various dictionary meaning fix is definedas, to assess, to determine, to settle (see e.g. MS Dictionary), whereas,the word determine connotes; to fix conclusively andauthoritatively; to come to a decision, to settle, to resolve, to fix theform or character before hand; ordain; to find out the nature, limit,dimension and scope (see MS Dictionary and Merriam and Webster Dictionary). Inview of the aforestated position, I have wee hesitation to hold thatthese two (words) are analogous and interchangeable terms/words.Thus from the above it is clear that, it is only such right which isdetermined by the President which entitles the Judges to pension;if there is no determination there is no right and if thedetermination is qualified, the right is not absolute, but conditionalthereto. Therefore, in the context of the instant proposition, it ishereby conclusively held that such right is subject to, dependentupon, and circumscribed by the condition of determination; andwhen the said determination has prescribed certain qualificationsand the requirements for the conferment and/or for acquiring the(such) rights, the right shall only be created, as is mandated by law,and the conditions laid down therein (the law) are first satisfied. Ifind myself in agreement with the plea raised from the Judges side,that the provisions of Paragraph 2 of the Fifth Schedule areindependent of Paragraph 3, but none, as repeatedly queried, was

188able to answer and point out if the President has ever made anydetermination about the entitlement/right to receive pension withrespect to those Judges who have the term of service less than fiveyears. Undoubtedly while considering the contents of Paragraph 3of the Fifth Schedule and also the relevant provisions ofP.O.3/1997, the determination of the right and the entitlement isonly restricted to, with respect to those Judges who have served forfive or more years and for none else. I am absolutely unimpressedby the argument from the Judges side that the determination hasbeen made as per the provisions of P.O.2/1993 reproduced above;or for that purpose Paragraph 3 of the Fifth Schedule or clause 14of P.O.3/1997 should be enlarged or read down (note: Mr. Munir A. Malik,ASC, has argued this point); it is my candid opinion that P.O.2/1993 hasnothing to do with the determination contemplated by Paragraph 2of the Fifth Schedule, rather it (P.O.2/1993) is pursuant to Paragraph3 of the Schedule, as it is so clear from the title thereof and suchPresidential Order is only meant for and caters for the Judges,whose right have been determined as per the force of Paragraph 2of the Fifth Schedule. Now considering the right to pension interms of the convention etc. There has not been a single instance(present case is an exception) in the Subcontinent that a retired Judgewho had not completed the requisite term of service would ask foror was granted the pension, which thus had developed into aconvention and this was also the contemporaneous understandingof the law, that is why the legal illumenorions of their time, whohad lesser term of service than required never pressed for pension(this aspect has also been highlighted by my brother). Before parting with theproposition, passingly it may be mentioned that in India, almost in

189a similar factual scenario, an akin issue, cropped up, and in viewof the provision of Article 221 ibid and Section 14 of the Indian(relevant) law, which prescribed a particular tenure for theentitlement to pension of the High Court Judges; the Court seizedof the matter in that case reported as Pana Chand Jain Vs. Unionof India and others (AIR 1996 Rajasthan 231) held:-“Reading the aforesaid provisions (Section 14) with Part-I ofthe First Schedule to ‘the Act’ it is evident that the amountof pension payable to a Judge of the High Court is linkedwith the length of service rendered by him. This very basisof fixation of amount of pension is challenged by thepetitioner………………………………………………………...”“Thus, framers of the Constitution, who laid down theeligibility criteria in Article 217 of the Constitution madedistinction while determining the amount of pension andother allowances payable to the High Court Judges. That iswhy they made separate provision by enacting Sub-Clause(2) of Article 221. The leave of absence and the pensionand other allowances payable to High Court Judges wasleft to be determined by Parliament by enactment of law.The framers of the Constitution did not take upon the taskof fixing the amount of pension themselves as theyundertook this task while fixing the amount of salary. Thevery scheme of the Constitution suggests that the amount ofpension to be payable to a High Court Judge is to be left tothe wisdom of the Parliament. This is the mandate of theConstitution. Therefore, the contention based on theprovisions of Constitution and particularly the provisionsof Article 217 is misconceived. If the argument is accepted,it would lead to absurd result inasmuch we may have tocome to the conclusion that the framers of the Constitutionwere not aware about the distinction introduced and madeby themselves in Article 221(2) in respect of leave ofabsence and pension payable to the High Court Judges.Therefore, there is no merit in the argument that theprovision of Section 14 of the Act is contrary to law or

190violative of Articles 217 and 221 of the Constitution.”WHETHER “THE JUDGMENT” IS PER INCURIAM ANDTHE NEXUS OF THE PRINCIPLES OF LOCUSPOENITENTIAE AND LEGITIMATE EXPECTATION ETC.(Question No.5)10. For adjudging the validity of the law laid down in “thejudgment” (PLD 2008 SC 522), it seems expedient to make a brief probeinto the facts of that case. Justice (Retd.) Ahmed Ali U. Qureshiretired as a Judge of the Sindh High Court, without having aperiod of five years to his service credit (as High Court Judge). He (in theyear 1994) filed a writ petition in the Sindh High Court, claimingentitlement to the pension, notwithstanding the length of hisservice, which claim of the learned (Retd) Judge was accepted bythe learned High Court vide its judgment dated 2.2.1995 (reported asPLD 1995 Kar 223) holding “We are, consequently of the view that rights andprivileges admissible to the petitioner in respect of his pension are now governedunder President's Order 2 of 1993”………………“In the result, the petition isallowed and the respondents are liable to fix the petitioner's pension at themaximum pension as allowed under President's Order No. 2 of 1993”. Thisverdict has been affirmed by this Court in “the judgment” (PLD 2008SC 522) and in relation to the proposition, about the entitlement ofthe pension of the Judges, while interpreting Article 205 of theConstitution and the Fifth Schedule thereto, this Court came tothe conclusion that Paragraphs 2 and 3 of the Schedule are twoindependent provisions (note: no cavil with the above). Besides, underParagraph 2 (of the Schedule) ‘Every Judge’ is entitled to pension,irrespective of his length of service and Paragraph 3 only relates tothose Judges who have served for more than five years; the latterParagraph in no manner debars and/or preclude the other Judges,

191who have served for less than five years to receive pension. In thisregard with an object to justify that the entitlement of such Judges(with less than five years term) has been determined by the President,strenuous reliance was placed on P.O.2/1993 and also on thefactum that this entitlement has been affirmed and recognized byP.O.7/2008.This Court also implied (in that decision) that theexpression “every Judge” appearing in Paragraph 2 of the FifthSchedule, as against the lack of or the omission of the expression‘a Judge’ therein, is significant and therefore the entitlement of“every Judge” notwithstanding P.O.3/1997 is absolute andestablished. In my view “the judgment” (PLD 2008 SC 522) is perincuriam and for this purpose my opinion/exposition on QuestionNo.4 (ibid) should be read as integral part herein, and in the lightthereof, I hereby enumerate the fundamental errors of “thejudgment” which has rendered it per incuriam: (a) the legislativehistory of the law on the field has been ignored and overlooked bythe Court (b) the true nature, the concept and the purpose of thepension has been disregarded (c) the convention and the previouspractice which has the force of law, in that, no pension was everpaid or claimed by the Judges who did not qualify the test of thelaw, has been elided (d) the most important and crucialwords/expression of the relevant laws such right andfix/determination of such right, by the President has not beenadverted to at all (e) once holding that the provisions of Paragraphs2 and 3 of the Fifth Schedule are independent, still the justificationof entitlement has been founded upon either of the two Paragraphsby erroneously reading those with P.O.3/1993 (f) P.O.2/1993undisputedly was issued under Paragraph 3 of the Fifth Schedule,

192yet it has been misconceived that the determination by thePresident has been made on the basis thereof which could only bein the context of the Paragraph 2. In this behalf conspicuousomission has been committed, by not adverting to and taking inaccount (reproducing) the title part of P.O.2/1993, which reads as“Whereas, the proviso to third paragraph of the Fifth Schedule to theConstitution of the Islamic Republic of Pakistan relating to the remuneration ofthe Judges of the Supreme Court and High Courts provides that the Presidentmay, from time to time, raise the minimum or maximum amount of pension sospecified in the said paragraph” which clearly contemplated that theP.O. was only restricted to Paragraph 3 (g) P.O.7/2008 wasresorted to, which was subsequently declared as ultra vires andnon est by this Court in the Sindh High Court Bar Association case(h) the contemporaneous understanding of law and the factor thatduring the long period of about around 50 years, no Judge havinga lesser tenure than the one prescribed by law for the time being inforce, ever claimed or approached the Court, for the pension havegrossly eluded the attention of the Court.11. Now attending to the proposition raised from theJudges side, that as a vested right has been created in theirfavour, on account of the judgment thus on the basis of thedoctrine of past and closed transaction, locus poenitentiae, andlegitimate expectation, such right cannot be stultified and takenaway which stands protected in perpetuity; suffice it to say that asper the settled law, no perpetual right can be created in favour of acitizen/a person, which (right) is against the law. The right topension, which the judges claim to have been created in theirfavour, undoubtedly is founded upon “the judgment” (PLD 2008 SC

193522). Obviously, this right has to sustain and cease with the fate ofthe said judgment. If the law declared in “the judgment”, ispronounced to be per incuriam (as has been done in the matter) “thejudgment”, and the law enunciated therein stand extinguished andwith the annihilation of “the judgment”, the right also vanish andthe judges cannot claim, under any principle of law (quoted above),that they still should be paid the pension in future. Even though,the said judgment being per incuriam has been set aside by thisCourt.In the context of the plea that the right of pension cansustain, I intend to analyze the doctrine of locus poenitentiae; mylearned brother in his judgment has defined and elucidated theprinciple of locus poenitentiae, however at the cost of repetition, itis held that locus poenitentiae conceptually connotes, thatauthority which has the jurisdiction to pass an order and take anaction, has the due authority to set aside, modify and vary suchorder/action, however there is an exception to this rule i.e. if suchorder/action has been acted upon, it creates a right in favour ofthe beneficiary of that order etc. and the order/action cannotthereafter be set aside/modified etc. so as to deprive the person ofthe said right and to his disadvantage. However, it may bepertinent to mention here, that as pointed out in the precedingpart, no valid and vested right can be founded upon an order,which by itself is against the law. In this regard, reference can bemade to the judgment reported as The Engineer-in-Chief Branchthrough Ministry of Defence, Rawalpindi and another Vs.Jalaluddin (PLD 1992 SC 207), the relevant part whereof reads asunder:-

194“It was further observed that locus poenitentiae is thepower of receding till a decisive step is taken but it is not aprinciple of law that order once passed becomesirrevocable and past and closed transaction. If the order isillegal then perpetual rights cannot be gained on the basisof such an illegal order.”Further dictas in this behalf are:- Abdul Haque Indhar and othersVs. Province of Sindh through Secretary Forest, Fisheries andLivestock Department, Karachi and 3 others (2000 SCMR 907)and M/s Excell Builders and others Vs. Ardeshir Cowasjee andothers (1999 SCMR 2089). Besides, the principle of locuspoenitentiae (with its exception), in my view, primarily has the nexusand application to administrative orders and actions, and wouldnot apply to the judicial decisions. The judicial decision can onlybe invalidated, quashed and annulled, through the process ofappeal, revision and review, if such remedies are available to anaggrieved party under the express provisions of law. And once suchdecision has attained finality it operates as res judicata inter se theparties to the lis (note: the decisions however rendered by the superior Courts in so farenunciating the law has the binding effect also on all the concerned). Therefore, such adecision until the law declared therein is altered in the appropriatejurisdiction of the Court or the decision is declared as per incuriam,and is squashed it shall have the due effect. But where thejudgment is set aside as in this case; the rule of locus poenitentiae,alongwith the exception, shall not be applicable, because asmentioned earlier, the doctrine primarily belongs to theadministrative domain of the State and is restricted toadministrative orders/actions alone. In this context, reference can

195be made to Clause 21 of the General Clauses Act, 1887, whichprovision is reproduced as below:-“Power to make, to include power to add to, amend, varyor rescind, orders, rules or bye-laws. Where, by anyCentral Act or Regulation, a power to issue notifications,orders, rules, or bye-laws is conferred, then that powerincludes a power, exercisable in the like manner andsubject to the like sanction and conditions (if any), to addto, amend, vary or rescind any notifications, orders, rulesor bye-laws so issued.”While interpreting such provision, it has been held by Sindh HighCourt in Sheikh Liaquat Hussain Vs. The State (1997 P.Cr.L.J.61)“The word "orders" has been used alongwith the words"notifications, rules, and bye-laws", and will thus beinterpreted ejusdem generis, meaning thereby that it willbe taken to be in the sense of an order issued by theLegislature or the Executive. Moreover, as a rule ofconstruction the words used in a statute must beconstrued according to their context and as such otherprovisions in that statute would be very much relevant.Section 21 should, therefore, be read in the light ofsections 14 to 20 and sections 22 to 24 and then it will beclear that the word "order" in that section refers toLegislative or Executive orders and not a judicial order. Iam fortified in my opinion by a Full Bench decision ofNagpur High Court reported as Venkatesh YashwantDeshpande v. Emperor AIR 1938 Nag. 513. I willreproduce with advantage the following observations inthis judgment:--"The meaning of the word 'orders' becomesclear when section 21 is read in conjunctionwith section 24. These considerations make itclear that the word 'order' used in section 21,

196General Clauses Act, is a legislative orstatutory order, that is an order having theforce of law. The order passed under section401 granting remission of punishment falls ina category different from the ordercontemplated in section 21, General ClausesAct. The applicability of that section is,therefore, highly doubtful. "A learned Single Judge of the Lahore High Court also tookthe view that section 21 of the General Clauses Act couldnot be pressed into service in relation to orders passed in ajudicial capacity. Reference in this connection may bemade to the case of Muhammad Ibrahim and 2 others v.Municipal Committee, Chiniot through its Chairman 1990ALD 655.”In this behalf, reliance can also be placed upon the judgmentreported as Venkatesh Yeshwant Deshpande Vs. Emperor (AIR1938 Nagpur 513) wherein it has been held as under:-“It is a well recognized rule of construction that the wordsused in a statute must be interpreted according to theircontext. Section 21 of the General Clauses Act, musttherefore be read in light of Ss 14 to 20 which precede Ss22 to 24 which follow. These considerations make it clearthat the word ‘orders’ used in section 21 is a legislative orstatutory order, that is an order having force of law.”Moreover, in the A.I.R. Manual, 5 th Edition 1989 by V.R. Manoharand W.W. Chitaley; the query at hand is addressed at on page 143of its book. It states that Section 21 of the General Clauses Actdoes not apply to a decision as to the rights of parties made byparticular judicial or quasi judicial or administrative authority.Orders spoken in the section are those in the nature ofsubordinate legislation.

197My own reading of the provisions of clause 21 of the GeneralClauses Act with reference to the object and purpose of the Act andits various provisions leads me to form a view that, the rule oflocus poenitentiae, for the purposes of the protection of the rightsunder the said clause, is only restricted to the administrative orexecutive orders/actions, and in no way is attracted to the judicialdecisions, particularly where a decision is declared as per incuriamand is specifically set aside. Upon the above principles, and thereasoning the doctrine of past and closed transaction, shall alsonot attract hereto, specially because no right can in perpetuityeither be created or be continued on the basis of a law, which hasceased to exist and has been annulled.As far as the rule of legitimate expectation is concerned,such rule is not a part of any codified law, rather the doctrine hasbeen coined and designed by the Courts primarily for the exerciseof their power of judicial review of the administrative actions. Asper Halsbury’s Laws of England, Volume 1(1), 4 th Edition, para 81,at pages 151-152, it is prescribed:-“A person may have a legitimate expectation of beingtreated in certain way by an administrative authority eventhough he has no legal right in private law to receive suchtreatment. The expectation may arise from a representationor promise made by the authority including an Impliedrepresentation or from consistent past practice.”In R. Vs. Secretary of State of Transport Exporte GreaterLondon Council (1985)3 ALL. ER 300, it is propounded that:-“Legitimate, or reasonable, expectation may arise froman express promise given on behalf of a public authorityor from the existence of a regular practice which the

198claimant can reasonably expect to continue. Theexpectation may be based on some statement orundertaking by or on behalf of the public authority whichhas the duty of taking decision.”In the judgment reported as Union of India Vs. HindustanDevelopment Corporation (1993)3 SCC 499 at 540, it has beenheld:-“The legitimacy of an expectation can be inferred only ifit is founded on the sanction of law or custom orestablished procedure followed in regular and naturalsequence. It is also distinguishable from a genuineexpectation. Such expectation should be justifiablylegitimate and protectable. Every such legitimateexpectation does not by itself fructify into a right andtherefore it does not amount to a right in theconventional sense.”It is thus clear from the above that the doctrine only hasnexus to administrative decisions and actions, and no one canhave resort to it, for the purposes of claiming any right found uponany decisions of this Court, which decision and the law laid downtherein is found by the Court to be per incuriam. Therefore, I do notfind any merit in the plea raised by the Judges side, that theirright to receive pension in future is protected on the principle oflegitimate expectation despite the fact that “the judgment” hasbeen declared per incuriam and set aside.WHETHER ANY PROTECTION IS AVAILABLE TO THEJUDGES ON THE RULE OF EQUALITY AS ENSHRINEDBY ARTICLE 25 OF THE CONSTITUTION(Question No.6)12. For the above question, it has been argued from theJudges side that they shall be discriminated qua the Judges of this

199Court as also the Judges of the High Courts who are entitled topension in terms of Paragraph 3 of the Fifth Schedule and alsoclause 14 of P.O.3/1997, as having served for a term of five yearsor more. There can be no two opinions, that the reasonableclassification and differentia is permissible under Article 25 of theConstitution. The Judges of this Court have been treated by theConstitution itself as a class apart from the Judges of High Courtsfor the purpose of pension, and by no conceivable reason, it can beheld that both the categories of the Judges i.e. Supreme Court andHigh Court forms part of one and the same class. Therefore, theplea with reference to the Judges of this Court has no force. Nowexamining the argument in relation to those Judges who havecompleted five years tenure; it may be mentioned that they areagain qualified to receive the pension under the mandate of theConstitution and in this behalf Paragraph No.2 of the FifthSchedule to the Constitution, and clause 14 of P.O.3/1997 arevery much clear; and I have already held (see discussion on entitlement) thatthe right to receive the pension is not absolute; it has to be earnedand it also is not a bounty. Therefore, the Judges lacking thequalification prescribed by law for acquiring the right cannotcompete with those who fulfill the requirement. It may be pertinentto state here that some of the Judges have a service tenure of oneyear/two years/three years; how conceivably they can comparethemselves, with those who have the prescribed tenure of five yearsand plead discrimination. Therefore, the submission made isunfounded and is hereby discarded.

200WHETHER THIS JUDGMENT SHALL HAVEPROSPECTIVE OR RETROSPECTIVE EFFECT(Question No.7)13. While assessing this question I have the privilege andadvantage of going through the note of my learned brotherMuhammad Ather Saeed, J. and agree thereto, therefore I shall notrepeat what my brother has already expressed. However I wouldlike to add; that in the ordinary course, the judgment(s)pronounced by this Court declaring and enunciating law hasprospective effect, but still, the prospective or the retrospectiveapplication of a particular judgment depends upon the facts andcircumstances of each case, and it is for the Court to decide (in eachcase), if the judgment should be made applicable prospectively orotherwise. In forming this opinion, I am fortified by the law laiddown in the case reported as Malik Asad Ali and others Vs.Federation of Pakistan through Secretary, Law, Justice andParliament Affairs, Islamabad and others (PLD 1998 SC 161 atpage 346) (on which reliance has also been placed by my learned brother in his judgment)the relevant part whereof reads “Even otherwise, as pointed out by usearlier, this Court while adopting an interpretation of the provision of the law orthe Constitution which is at variance from the existing view, it is only declaringthe correct law as an apex Court. By doing so, it neither legislates any new lawnor amends the existing law. Therefore, while interpreting a provision of law orthe Constitution, this Court can also provide the date from which theinterpretation given by it is to come into effect, keeping in view the nature of theprovision it is interpreting, the likelihood of possible prejudice which may becaused to an individual or a body of individual and the requirement of justice inthe case (emphasis supplied)”. In Malik Asad Ali’s case (supra), quite a fewprecedents on the subject have been cited. In my view the present

201decision warrants prospective application i.e. from the date of itspronouncement and I have reasons to form such an opinion.However, before propounding those reasons I intend to state that ajudgment per incuriam is not a judgment without jurisdiction andthus it is neither void nor nullity in the eyes of law therefore, thefallout of a void verdict/order shall neither follow nor can beresorted to; moreover in the context of this case, I find norelevance, to compare the interest of the Judges with the Stateand/or the public interest, on the touchstone of the maxim “saluspopuli est supreme lex” or on the rule that the individual interest hasto give way to the public welfare and interest. Be that as it may, myreasons for giving this judgment prospective effect are:- majority ofthe Judges have not even approached this Court to seek the relieffor the grant of pension, rather it is only in terms of paragraphNo.34 of “the judgment” which provides “In consequence to the abovediscussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003, 34/2003,04/2004 and 26/2007, filed by the retired Judges of the High Courts are allowedand the petitioners/applicants in these petitions and miscellaneous applications,along with all other retired Judges of the High Courts, who are not party in thepresent proceedings, are held entitled to get pension and pensionary benefits withother privileges admissible to them in terms, of Article 205 of the Constitutionread with P.O.No.8 of 2007 and Article 203-C of the Constitution read with paras2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the dateof their respective retirements, irrespective of their length of service as suchJudges (emphasis supplied)” that they were contacted by the Registrar ofthe respective High Courts (as this is the stand taken by them and I have no reasonsto disbelieve) and they were offered the pension. Some of thebeneficiaries of “the judgment” are the widows of the retiredJudges. It is nobody’s case that they have practiced and played any

202fraud or committed some foul in gaining and procuring thepension, so as to disentitle them to retain such gain, on the knownprinciple, that no one should be allowed to hold the premium of hiswrong/fraud and/or retain ill gotten gains. Rather to the contrarythey have received the monies under the judicial dispensation bythe apex Court, which was considered as valid enunciation of law,till the present decision and the pension was paid and received bythem in bona fide belief of the entitlement; none of the concerned,ever pointed out the depravity and the vice of “the judgment”,though “the judgment” was known at all the levels of the HighCourt(s) and also in other judicial circles, rather it was a publiclyknown fact, yet the verdict was left outstanding for a considerablylong period, thereby allowing the Judges to derive benefit of “thejudgment”; I am not persuaded that the Registrar of this Court orfor that matter all the concerned, at all the levels, including thelearned Members of this Bench, who graced the respective HighCourts of the country as the Chief Justices were unaware of “thejudgment”, but still no timely action was initiated to set the wronglaw, right and the time was allowed to pass. If a wrong and anerror has been committed in the declaration of law (PLD 2008 SC 522),the responsibility rests on this Court and it is fundamental rule oflaw and justice, that the act of the Court shall prejudice none; inmy view this principle tilts in favour of the Judges, rather theState. Because on account of the lapse of considerable time, mostof the Judges might have spent and consumed the amountreceived by them, as they are expected to have decent living aftertheir retirement; the amount so received might have expended onthe education and marriages of their children; the possibility that

203they might have acquired an abode to spend rest of their life toavoid dependency on their scion cannot be ruled out. This amountmight have been utilized on their daily expense and sustenanceand in the discharge of their other social and financial obligations.And if now the amount is ordered to be recovered from them theymight have to sell their assets (shelter) and belongings. Those whohave no assets or saving might be compelled and constrained toentreat others or borrow which would definitely not behove withtheir status and position as the retired Judges; baring few, most ofthem are of old age and I am not sure they have the ability andcapacity, at such an advance age to generate the requisite amountfor the refund. Enforcing the refund of the amount upon them maycause innumerable predicament for them and may lead to a verypathetic and a ludicrous situation for them. And all those whohave once graced the superior judiciary, might in this scenario berendered destitute and precarious and deprived of even a modestlife and living in future. But for the commission of no wrong, fraud,foul and fault on their part. Rather as stated earlier an error andmistake perpetrated by this Court. Therefore, I am of theconsidered view that the present judgment be given prospectiveeffect.14. I also do not find that in this matter the principle ofrestitution, which in the normal situation where a decision isreversed should apply because the judgment is not being set asideon the approach of any aggrieved party, but on its own motion bythis Court for the purposes of setting the wrong law correct.Furthermore, I am not impressed by a thought that as “thejudgment” was rendered during the period when the real judicial

204set up was lacking in country, therefore the recovery is justified,because to my mind all such decisions made and verdicts given inbetween the period of 3 rd March, 2007 and 23 rd March, 2009 havebeen saved as per the doctrine of defacto jurisdiction (see para 178 of theSindh High Court Bar Association case) however without debaring in anymanner this Court in its appropriate/proper jurisdiction, includingits suo moto jurisdiction to examine such decisions and to setaside those, inter alia, on the basis of rule of per incuriam; and “thejudgment” is no exception to it, however, it shall be perilous toimpute motives to the Judges in rendering the judgments. Be thatas it may, in not conferring retrospective effect to the presentjudgment and I am persuaded by the law laid down by this Courtin The Engineer-in-Chief Branch through Ministry of Defence,Rawalpindi and another Vs. Jalauddin (PLD 1992 SC 207) (towhich reference has also been made by my learned brother in his judgment) wherein whileconsidering the aspects of locus poenitentiae and past and closedtransaction, with regard to an order involved in that case, whichwas declared to be illegal, it has been held as under:-“Locus poenitentiae is the power of receding till a decisivestep is taken. But it is not a principle of law that order oncepassed becomes irrevocable and it is past and closedtransaction. If the order is illegal then perpetual rightscannot be gained on the basis of an illegal order. In thepresent case the appellants when came to know that on thebasis of incorrect letter, the respondent was grantedGrade-11, they withdrew the said letter. The principle oflocus poenitentiae would not apply in this case. However,as the respondent had received the amount on the bona fidebelief, the appellant is not entitled to recover the amountdrawn by the respondent during this period when the letterremained in the field.”

205Therefore following the above dictum, I hold that the amount so farreceived by the Judges should not be recovered, from them, as itshall be oppressive and more prejudicial to the Judges, as againstthe respondent of the case i.e. (of PLD 2008 SC 522) and the State,which (State) even never ever filed any review against “thejudgment”, even after the success of the movement for therestoration of real judiciary. And even now the recovery has notbeen pressed for before us by the State. However, as now thejudicial verdict (PLD 2008 SC 522) under which the Judges had andhave been receiving the pension, is declared per incuriam and is setaside, obviously their right to receive the pension has ceased andcome to an end, rather they are disentitled to receive pension infuture. And as mentioned earlier, such right for the future receiptof pension is not protected under any principle, rule and onjurisprudential plain.15. While summation of my this discourse, I want to statethat in the judgment authored by my brother Anwar ZaheerJamali, J. it has been held that for the purposes of the entitlementto pension, there is no distinction between “a Judge” and an“Additional Judge” of the High Court. In this behalf, my brotherhas taken into account the definition of a “Judge” provided inArticle 260 of the Constitution and reference to certain P.Os. havealso been made, the definition of remuneration etc. has also beenconsidered, but with due deference to my learned brother, I am notinclined to endorse such a view and the reasoning; because in myhumble estimate, the object and purpose of such appointment (seeArticle 197) is different and the definitions are only meant for thepurposes of the functions/privileges and remuneration of an

206“Additional Judge” during the course of his service as AdditionalJudge, but does not entitle him for pension even if he has servedfor five years. Anyhow as in the present scenario, in my view theabove question is only rendered academic and as we have notreceived much assistance on the point, therefore, I shall leave theissue open and left to be resolved in some appropriate matter.JUDGE

207EJAZ AFZAL KHAN,J:- I have gone through the judgment authoredby my brother Mr. Justice Anwar Zaheer Jamali. Though I agree with thejudgment yet I would like to record reasons of my own on certain points.2. The entire argument of the learned counsel appearing to defendthe judgment rendered in the case of “Accountant General, Sindh andothers. Vs. Ahmed Ali U. Qureshi and others” (PLD 2008 SC 522) hinges onthe words “every judge of a High Court” used at the start of paragraph 2of Fifth Schedule to the Constitution of the Islamic Republic of Pakistan,1973. The main thrust of their argument is that when it has been providedin the said paragraph that every judge of a High Court shall be entitled tosuch privileges and allowances and to such rights in respect of leave ofabsence and pension the legislature in its wisdom can never be said tohave conditioned the incidence of such rights with having put in not lessthan five years of service as such judge. It, according to them, recognizedthe entitlement of every judge to the privileges and allowances and suchrights in respect of leave of absence and pension irrespective of theirlength of service, therefore, it has to be determined by the President andthat failure to do so will not culminate in the extinguishment of such rights.These arguments so to speak, evince an element of ingenuity but when allthe paragraphs of the Schedule are read in their correct perspective,these arguments appear to be fallacious both legally and logically. Whatparagraph-2, in simple words, provides is that every judge of a High Courtshall be entitled to such privileges and allowances and to such rights inrespect of leave of absence and pension as may be determined by thePresident and until so determined the judges of the High Court would getwhat they were, immediately before the commencing day, entitled to.Now the question arises what the judges of the High Court entitled tobefore the commencing day of the Constitution. The answer can well befound in paragraph-13 of Order IX of 1970. The relevant provisions of theOrdinance read as under:-

208“13. Conditions of admissibility of pension. – A Judge shall, onhis retirement, resignation or removal, be paid a pension inaccordance with the provisions of this Order if he has ----a) completed not less than five years of service for pensionand attained the retiring age; orb) completed not less than ten years of service forpension and, before attaining the age, resigned; orc) completed not less than five years of service forpension and, before attaining the retiring age, either resigned, hisresignation having been medically certified to be necessitated byill-health, or been removed for physical or mental incapacity;Provided that, for the purpose of clause (a) of Part I of theFirst Schedule a deficiency of three months or less in the service forpension as Judge shall be deemed to have been condoned.14. Determination of pension. --- Subject to the provisions of thisOrder, the pension payable to a Judge who, on his retirement, isentitled to a pension under this Order shall be calculated ---a) in the case of a Judge who is not a member of aservice in Pakistan or who immediately before hisappointment as a Judge did not hold any otherpensionable civil post in connection with the affairs of theCentre or of a Province, in accordance with the provisionsof Part I of the First Schedule;b) in the case of a Judge who is a member of a civilservice in Pakistan or who immediately before hisappointment as a Judge held any other pensionable civilpost in connection with the affairs of the Centre or of aProvince, in accordance with the provisions of Part II of theFirst Schedule, unless he elects to receive pension underPart I of the said Schedule.15. Pension of Judges not covered by paragraph 13. --- A Judgewho immediately before his appointment as such was a memberof a civil service in Pakistan or was holding a post in connectionwith the affairs of the Centre or of a Province and who does notfulfill the conditions laid down in paragraph 13 shall, on retirement,be entitled to such pension as would have been admissible to himin his service or post, had he not been appointed a Judge, hisservice as a Judge being treated as service for the purpose ofcalculating that pension”.2. An identical provision can be found in the Constitution of1962 and that of 1956 in the same words which provided that every judge

209of a High Court shall be entitled to such privileges and allowances and tosuch rights in respect of leave of absence and pension as may bedetermined by the President and unless so determined to the privileges,allowances and rights to which immediately before the commencing daythe judges of the High Court were entitled. What was the instrumentregulating the entitlement of the judges to the privileges and allowancesand to such rights in respect of leave of absence and pensionimmediately before the commencing day of the aforesaid Constitution.The answer can be found in the relevant provisions of The High CourtJudges Order 1937 which read as under:-“Pension. 17.--- (1) Subject to the provisions of this Order, apension shall be payable to a Judge on his retirement if, but only if,either –a) he has completed not less than 12 years’ service forpension; orb) he has completed not less than 7 years’ service forpension and has attained the age of sixty; orc) he has completed not less than 7 years’ service forpension and his retirement is medically certified to be necessitatedby ill-health”.2) The [President] may for special reasons direct that any periodnot exceeding three months shall be added to a Judge’s servicefor pension:Provided that a period so added shall be disregarded incalculating any additional pension under Part I or Part II of theThird Schedule to this Order”.3. All provisions of the orders reproduced above show that aJudge shall have a right to pension only if he has put in the prescribedqualifying service. Mere appointment as a Judge will not entitle him topension. Many instruments regulating the entitlement of judges of the HighCourt to privileges and allowances and rights in respect of leave ofabsence and pension like Order II of 1993 and Order IX of 1970 have beenenforced but none of them entitles them to rights to pension if they haveput in less than five years of service. It, thus, clinches the matter once and

210for all and leaves no doubt that rights of the judges to pension who haveput in less than five years of service also stand determined. What wasrequired to be enforced under the enabling provision of the FifthSchedule stood enforced in the form of Order II of 1993 and Order III of1997 which have been extensively reproduced in the main judgment.When this being the case, we don’t understand where do the rights topension of the judges who have put in less than five years of service comefrom. It was argued by one of the counsel representing the retired judgesthat if the rights of the judges to pension who have put in less than fiveyears of service, have been recognized by the Constitution, it could notbe denied due to inaction of the President as the very conferment of thepower enabling him to determine such rights would invariably call for itsexercise. But this argument, to say the least, appears to be misconceivedas there has not been any inaction on the part of the President at anystage or at any point of time, inasmuch as, he enforced Order II of 1993and Order III of 1997 determining such rights in clear and unambiguousterms. Once these rights have been determined pursuant to paragraph 2of Fifth Schedule of the Constitution, we don’t think any judge who hasput in less than five years service can be left with a hope or an occasionto wait for yet another order determining the rights in accordance with hiswishful thinking.4. The provision recorded in the judgment rendered in the caseof “Accountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi andothers” (supra) entitling a Judges to pension who have put in less than fiveyears of service is paragraph 4 of Order VIII of 2007 but when this and theparagraph succeeding it are read together and each word used thereinis given due meaning, it does not tend to support the deductions drawntherefrom. None of the words used in the aforesaid paragraphs couldlead to the meaning wrung and wrested therefrom in the judgment underreview. It appears that the aforesaid paragraphs have not been readcarefully nor were they interpreted in their correct perspective.

2115. When asked whether the Judges who have put in less than fiveyears of service could retain the benefits they have received in case thejudgment rendered in the case of “Accountant General, Sindh and others.Vs. Ahmed Ali U. Qureshi and others” (supra) is set at naught, learnedcounsel representing the Judges submitted that it being a transactionpast and closed cannot be reopened because a subsequent decisionbeing prospective in operation cannot be applied retrospectively. Butwhen asked how the Judges who have put in less than five years service,could retain the benefits they have received or continue to receive if thejudgment furnishing basis for grant of such benefits is set at naught andthus rendered non existent, no satisfactory reply was given by any of thecounsel representing them. Granted that a subsequent precedentoverruling a previous one being prospective in operation cannot beapplied retrospectively but this principle will not apply when the judgmentfurnishing a basis for a right or entitlement stands annulled on having beenreviewed. Therefore, a judgment reversing or declaring a judgment perincuriam in review cannot be treated at par with a judgment overruling ordeclaring a precedent in another case as per incuriam. As for example, apre-emptor, succeeding to get a decree from a Court, in a pre-emptioncase without having a superior right of pre-emption and without makingdemands which are sine qua non for the enforcement of such right,cannot claim any right or benefit much less vested on the basis of suchdecree when it is annulled by the Court granting it in the exercise of itsreview jurisdiction. Retention of a benefit or right thus acquired cannot bejustified under any cannons of law, justice and propriety. It cannot bejustified on the plea of bonafide either. What is illegal would remain illegal.It cannot be changed into legal by pleading bonafide.6. When learned counsel for the respondents could not findany statutory basis to shield the benefits the latter received, they sought toshield them behind the principle of locus poenitentiae by arguing that anorder extending a right cannot be rescinded, revoked or recalled if it is

212acted upon and in consequence a right has accrued. This principlecannot help them firstly because it is not applicable to judicialproceedings and secondly because it cannot be applied in a vacuumwithout considering the import of provisions contained in section 21 of theGeneral Clauses Act. According to the aforesaid provision, the authoritypassing such order, in the first instance must have a power to pass, andthen recall, revoke or rescind it. Where the authority passing the order hasno power to pass it, its recall, revocation or rescindment can’t beprecluded on the ground that it has been acted upon and inconsequence a valuable right has accrued. An order passed without apower, would be just non-est. The judgment rendered in the case of“Accountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi andothers” (supra), when read with open eyes does not appear to havebeen based on and backed by any order, instrument or any statutoryprovision worth the name. It, therefore, has no basis altogether. If at all ithad any by any stretch of imagination, it vanished and withered away onhaving been reviewed. Needless to say, that fall of basis would call forthe fall of the superstructure raised thereon. Effect of the judgment inConstitution Petition No. 127 of 2012 declaring the judgment rendered inthe case of “Accountant General, Sindh and others. Vs. Ahmed Ali U.Qureshi and others” (supra) as per incuriam would be prospective as wellas retrospective when the existence of the latter on having beenreviewed has been reduced into non-existence unlike the judgmentsoverruled or dissented from inasmuch as they for having been rendered indifferent cases do not reopen the matters past and closed.7. I have also been deliberating since the commencement ofhearing of their case till the writing of this note to find some justification forthe retention of the benefits received by the learned Judges but couldnot find any. In case I create or contrive one in this behalf, I cannot findany reason to deny the same relief to the others whose case is either inthe pipeline or who have yet to retire. I also could not find any intelligible

213differentia for a classification amongst the Judges who have received thebenefits and those who have yet to receive notwithstanding they aresimilarly placed. Even otherwise, a benefit extended in derogation of thelaw cannot be justified to be retained simply because it has beenreceived as such.Judge

219Iqbal Hameedur Rahman, J: - I have the honour and privilege ofgoing through a very lucid judgment expounded by my lord Justice AnwarZaheer Jamali, J, as well as additional notes of my lords Justice Mian SaqibNisar and Justice Muhammad Ather Saeed, JJ, wherein very persuasive andelaborate interpretation has been given with clarity in pursuance to ourshort order dated 11.04.2013, whereby the judgment rendered by this Courtin the case of Accountant-General, Sindh and others vs. Ahmed Ali U.Qureshi and others (PLD 2008 SC 522) has been declared to be perincuriam.2. Both my lords, Justice Anwar Zaheer Jamali and Justice Mian SaqibNisar, JJ, have in exhaustive manner dealt with the contentions raised byrespondents-Judges and the law alongwith the interpretation ofconstitutional provisions extensively with clarity and reasoning supportedby celebrated judgments and I fully concur with the reasoning andconclusions being propounded by my lords by holding the judgment in thecase of Accountant-General, Sindh and others vs. Ahmed Ali U. Qureshiand others per-incuriam. There is no cavil to the same and I fully agreewith the same, but with due reverence and humility to my lord JusticeAnwar Zaheer Jamali, J, I find myself not in consonance with the view thatthe judgment should take retrospective effect rather, on this issue, I concurwith my lords Justice Mian Saqib Nisar and Justice Muhammad AtherSaeed that the judgment should take prospective effect, and in this regard Iam fully in accord with the reasons given by my lord Justice Mian SaqibNisar, J, which reads as under: -“13. …….. Be that as it may, my reasons for giving this judgmentprospective effect are:- majority of the Judges have not even approached thisCourt to seek the relief for the grant of pension, rather it is only in terms ofparagraph No.34 of “the judgment” which provides “In consequence to theabove discussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003,

22034/2003, 04/2004 and 26/2007, filed by the retired Judges of the High Courtsare allowed and the petitioners/applicants in these petitions and miscellaneousapplications, along with all other retired Judges of the High Courts, who are notparty in the present proceedings, are held entitled to get pension and pensionarybenefits with other privileges admissible to them in terms, of Article 205 of theConstitution read with P.O.No.8 of 2007 and Article 203-C of the Constitutionread with paras 2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of1997 from the date of their respective retirements, irrespective of their length ofservice as such Judges (emphasis supplied)” that they were contacted by theRegistrar of the respective High Courts (as this is the stand taken by them and I have noreasons to disbelieve) and they were offered the pension. Some of the beneficiariesof “the judgment” are the widows of the retired Judges. It is nobody’s case thatthey have practiced and played any fraud or committed some foul in gaining andprocuring the pension, so as to disentitle them to retain such gain, on the knownprinciple, that no one should be allowed to hold the premium of his wrong/fraudand/or retain ill gotten gains. Rather to the contrary they have received themonies under the judicial dispensation by the apex Court, which was consideredas valid enunciation of law, till the present decision and the pension was paidand received by them in bona fide belief of the entitlement; none of theconcerned, ever pointed out the depravity and the vice of “the judgment”,though “the judgment” was known at all the levels of the High Court(s) and alsoin other judicial circles, rather it was a publicly known fact, yet the verdict wasleft outstanding for a considerably long period, thereby allowing the Judges toderive benefit of “the judgment”; I am not persuaded that the Registrar of thisCourt or for that matter all the concerned, at all the levels, including the learnedMembers of this Bench, who graced the respective High Courts of the country asthe Chief Justices were unaware of “the judgment”, but still no timely actionwas initiated to set the wrong law, right and the time was allowed to pass. If awrong and an error has been committed in the declaration of law (PLD 2008 SC522), the responsibility rests on this Court and it is fundamental rule of law andjustice, that the act of the Court shall prejudice none; in my view this principletilts in favour of the Judges, rather the State. Because on account of the lapse ofconsiderable time, most of the Judges might have spent and consumed theamount received by them, as they are expected to have decent living after theirretirement; the amount so received might have expended on the education andmarriages of their children; the possibility that they might have acquired an

221abode to spend rest of their life to avoid dependency on their scion cannot beruled out. This amount might have been utilized on their daily expense andsustenance and in the discharge of their other social and financial obligations.And if now the amount is ordered to be recovered from them they might have tosell their assets (shelter) and belongings. Those who have no assets or savingmight be compelled and constrained to entreat others or borrow which woulddefinitely not behove with their status and position as the retired Judges; baringfew, most of them are of old age and I am not sure they have the ability andcapacity, at such an advance age to generate the requisite amount for the refund.Enforcing the refund of the amount upon them may cause innumerablepredicament for them and may lead to a very pathetic and a ludicrous situationfor them. And all those who have once graced the superior judiciary, might inthis scenario be rendered destitute and precarious and deprived of even a modestlife and living in future. But for the commission of no wrong, fraud, foul andfault on their part. Rather as stated earlier an error and mistake perpetrated bythis Court. Therefore, I am of the considered view that the present judgment begiven prospective effect.”3. I, therefore, consider the judgment Accountant-General, Sindh(supra) to be per-incuriam, which should be given prospective effect andthe pensionary benefits being paid to the Judges should be discontinuedwith effect from passing of the judgment and order by this Court, but nodirection for the of recovery of pensionary benefits and emoluments alreadyavailed by them can be given, as the same are undoubtedly not obtained bythem on account of any commission of wrong, fraud or fault on their partrather the same have been availed on account of a mistaken judgment bythis Court. As such, the instant judgment and order cannot be givenretrospective effect.Judge.

Mr. Justice Anwar Zaheer Jamali Mr. Justice Mian Saqib Nisar M

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