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P L D 1995 LAHORE 27

HABIB-UL-WAHAB AL-KHAIRI AND OTHERS
V/S
FEDERATION OF PAKISTAN AND OTHERS

FRAME : 3
Per: Raja Afrasiab Khan, J.
(a) Constitution of Pakistan (1973), Articles 193, 17.

To be a member of a political party is also not, in our view, a disqualification for a member of the legal fraternity to be a Judge of High Court, if he is otherwise, qualified under the Constitution to hold such an office. It is the fundamental right of every citizen to be a member of a political party of his choice under Article 17 of the Constitution. The said Article reads as follows:

(1) “17. Freedom of association — (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of (sovereignty or integrity of Pakistan, public order or morality).

(2) Every citizen, not being in the service of Pakistan, shall the right to form or be a member of a political party, subject any reasonable restriction imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration refer the matter to the Supreme Court whose decision on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with law”.

An apt observation was made by the learned Supreme Court in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) which is as follows:

“Actually the objection being raised by the learned counsel for the respondents before us here stands practically answered already in Benazir Bhutto’s case PLD 1988 SC 416. It was herein, inter alia, also observed:

Reading Article 17(2) of the Constitution as a whole it not only guarantees the right to form or be a member of a political party but also to operate as political party. Again, the forming of a political party necessarily implies the right of carrying in of all its activities as otherwise the formation itself would be of no consequence. In other words, the functioning is implicit in the formation of the party.”
[p. 37, 38]E,F
The respondent (learned Judges), therefore, exercised their fundamental right, if they , in their own wisdom, joined some political party before their elevation. Merely by doing so, they did not earn any disqualification for being appointed as Judges of the High Court.[p. 38]G

(b) Constitution of Pakistan(1973), Articles 2A, 34, 193

Another argument of the learned counsel was that women were not qualified to be appointed as Judges in view of the Islamic Injunctions. This contentions equally without substance inasmuch as there is no bar under Article 193 of the Constitution for elevation of women as Judges. The women, if otherwise qualified, are at par with men to be appointed for such offices. Nothing has been shown to us from Holy Quraan or Saying of Holy Prophet (peace be upon him) that women cannot become Judges merely on ground of their sex. The position is, rather, otherwise. The State Policy as enshrined in Article 34 of the Constitution is that:

“Full participation of women in national life — Steps to be taken to ensure full participation of women in all spheres of national life”.
[p. 39]H

(c) Constitution of Pakistan(1973), Articles 196, 260
The contention that the Acting Chief Justice was not competent to make recommendations for appointment of Judges is without substance inasmuch as under Article 260 of the Constitution, “Chief Justice” includes the Judge for the time being acting as Chief Justice of the Court.[p. 41]I
I respectfully follow the above rule in this case as well. This being so, the learned Acting Justice is the Chief Justice for all intents and purposes for the performance of the functions of this office including the appointment of new Judges.[p. 42] J
(d) Constitution of Pakistan(1973), Article 197
r/w Notification No.F8(I)/87-All, dated 30-11-1988—-Notification No.F.8(1)/88-All(A), dated 1-9-1990—-
The tenor of Article 197 is that in order to meet a particular situation, additional Judges can be appointed by the President of Pakistan. They may be appointed for a limited period, for a limited purpose as for example to clear the back log.[p. 43]K
In such an alarming situation, it, therefore, may not be necessary for the Prime Minister or the President to want for the expiry of one year term for which period these appointments have been made to confirm the said Judges. They may, if so desire, confirm these Judges in their own wisdom even before the expiry of their term of office. This may not be a new phenomenon because earlier too, under similar circumstances, a batch of six Additional Judges was confirmed without waiting for the expiry of term for which they were initially appointed.[p. 43]L

(e) Constitution of Pakistan (1973), Article 193, 197.

A bare perusal of Articles 193 and 197 of the Constitution of Islamic Republic of Pakistan, 1973 shows that even against a permanent vacancy, the President has the discretion to appoint Additional Judges for a specified of time, on expiry whereof if the appointments are not made permanent or the said period is not extended, said appointment shall automatically lapse, and this is what has resulted in the case of the aforementioned five Hon’ble Additional Judges whose period of service has not been extended. Hence, so far as the said learned Judges are concerned, their case is no more a live issue.[p. 43] M

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