Appointment of Judges

S. 7, 42 and 43 of AJ&K Interim Constitution Act, 1974 and Article 48,177 and 193 of Constitution of Islamic republic of Pakistan 1973 — Method for appointment of Judges — Difference/distinction between the constitutional provisions. The High Court relied upon the judgment of Supreme court delivered in Al-Jehad Trust case PLD 1996 SC 324 — The provisions of Article 48 of the Constitution of Islamic Republic of Pakistan 1973 and section 7 of the Constitution Act are quite different in nature — The words “subject to an express provision to the contrary in this Act” appearing in the section 7 of the Constitution Act are missing in Article 48 of the Islamic Republic of Pakistan 1973 — Similarly in the Constitution of Islamic Republic of Pakistan, 1973, the word ‘‘advice’’ appears in article 48 only, while in the Constitution Act, the word ‘‘advice’’appears in section 7,42(A) and 43(2-A) for different purposes — A Judge in the Supreme Court of Pakistan is appointed under Article 177 by the President after consultation with the Chief Justice of Pakistan and a Judge in the High Court is appointed by the President after consolutation with Chief Justice of Pakistan, Governor concerned and the Chief Justice of High Court under Article 193 — There is marked difference in the provisions of Constitution of Islamic Republic of Pakistan, 1973 and the Constitution Act — There is no concept of advice in Article 177 and 193 of the constitution of Islamic Republic of Pakistan, 1973 as in section 42 and 43 of the Constitution Act — Held: The difference in two Constitutions has not been considered while delivering the impugned judgment. M Younas Tahir v. Shaukat Aziz 2010 SCR 381 (C)
Constitution of different States of World discussed — independence of judiciary — consultation — the appointments of judges in different states, are made in the judiciary in consultation with or on the recommendations of the concerned bodies consisting of the Chief Justices, Judges and jurists of the Country — according to the universally applicable principles, there is no concept of subservient judiciary in the world — rather there is a universal consensus on the independent and dignity of the judiciary with minor modification according to constitutional structure and scheme of different States the power of appointments in judiciary does not arbitrarily or solely vest in the ruler — rather all appointments are made in consultation with the Chief Justices or the prescribed bodies or person commonly consisting of the Chief Justices or the persons or office holders concerned with the field of administration of justice. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (W)
Shariat Court — consultation process — independence of judiciary — safeguard as to fundamental rights — Held: for independence of judiciary, the appointments in the Shariat Court in consultation with the Chief Justice of High Court/Shariat Court and the Chief Justice of AJ&K is the mandatory constitutional requirement — Further held: the appointment in thejudiciary without consultation with the Chief Justice are against the spirit of Constitution Act — for establishment of indepent judiciary and to protect the constitutionally guaranteed fundamental rights, if any Court is established in violation of the spirit of the constitution without consultation of the Chief Justices, it amounts to abridge and take away the fundamental rights. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (X)