Transfer of judges to IHC within framework of Constitution: SC CB

ISLAMABAD: The Constitutional Bench of the Supreme Court held that the entire procedure for the transfer of judges from different High Courts to the Islamabad High Court was followed in letter and spirit, and consent was accorded with proper application of mind.

A five-member Constitutional Bench, headed by Justice Muhammad Ali Mazhar and comprising Justice Naeem Akhter Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar and Justice Shakeel Ahmad, on Thursday, released the detailed reasoning of their short order.

The bench on 19th June, 2025 by a majority of 3 to 2 (Justice Mazhar, Justice Shahid, and Justice Panhwar) declared that transfer of judges under Article 200 is within the framework of the Constitution, and (permanently or temporarily) cannot be construed as a fresh appointment.

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55 pages’ judgment, authored by Justice Mazhar, said: “Seemingly, entire procedure has been followed in letter and spirit and consent was accorded with proper application of mind which is manifestly reflecting from the concurrence accorded by the consultees that was further reinforced and fortified through the replies filed by Registrars of the High Court and Supreme Court of Pakistan.”

“As a Constitutional Bench of this Court, by all means, we want to stick to our domain and decide the legal implications and compliances rather than delving into the allegations leveled against the consultees, which is otherwise uncalled for and unwarranted, therefore, we cannot pass any declaration to the effect whether the Chief Justice concerned were pliable on wishes of the Establishment or not,” it added.

The petitioners had blamed that the transfer of outside judges were made in the IHC vide Notification dated 01.02.2025 to victimize the six judges of the Islamabad High Court who had written a letter to the Chief Justice of Pakistan complaining about the interference of intelligence agencies in the judicial affairs.

The judgment said in practical and methodical legal acuteness, malice in law does not deduce an act done with an inappropriate or reprehensible motive, but it implies a wrongful act done intentionally without cause or excuse.

It noted that no doubt, the alleged reason of transfer is the letter of six judges but it is a ground reality that the proceedings on account of that letter is pending adjudication. Therefore, the arguments relating to the letter which is sub judice in some other proceedings cannot be taken and decided in the present proceedings.

Regarding the allegations that the Chief Justice (IHC) was pliable to act on the wishes of the Establishment, the judgment responded that the Court in the present proceedings had to figure out and decide whether the inbuilt mechanism provided under Article 200 of the Constitution fulfilled or not?

It said such allegations can be leveled easily against every transfer if made under Article 200 because the procedure and consultees will always remain the same, i.e., the Chief Justice of Pakistan and the Chief Justices of both High Courts, unless Article 200 of the Constitution is amended or substituted.

Islamabad High Court (IHC) five judges – Justice Mohsin Akhtar Kayani, Justice Tariq Mahmood Jahangri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rafat Imtiaz, Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, Karachi, Lahore and Islamabad High Court Bar Associations had filed the petitions against the transfer of three judges namely Justice Sardar Muhammad SarfrazDogar from Lahore High Court, Justice Khadim Hussain Soomro from Sindh High Court, and Justice Muhammad Asif from Balochistan High Court under Article 200 (1) of the Constitution.

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

It ruled: “Till such time that the seniority and nature of transfer (permanent or temporary) of the transferee judges is determined by the President, Justice Sardar Muhammad Sarfraz Dogar, already holding the office of Acting Chief Justice of the Islamabad High Court, will continue to perform as the Acting Chief Justice of the Islamabad High Court.”

Copyright Business Recorder, 2025