In the Supreme Court of Pakistan 
(Original Jurisdiction) 
 
 
 
 
Present: 
Mr. Justice Anwar Zaheer Jamali 
Mr. Justice Mian Saqib Nisar 
Mr. Justice Ejaz Afzal Khan 
Mr. Justice Muhammad Ather Saeed 
Mr. Justice Iqbal Hameedur Rahman 
 
Constitution Petition No.127 of 2012 
(Regarding pensionary benefits of the Judges of 
Superior Courts from the date of their respective 
retirements, irrespective of their length of service as 
such Judges) 
AND 
 
H.R.C No. 40927-S of 2012. 
 (Application by Abdul Rehman Farooq Pirzada) 
AND 
 
Civil Miscellaneous Appeal No.176/2012 in  
Constitution Petition No.Nil of 2012 
(Begum Nusrat Ali Gonda Vs. Federation of Pakistan etc. 
 
Attendane: 
For Mr. Justice (R) Rustam Ali Malik 
Mr. Justice (R) Rana M. Arshad Khan 
Mr. Justice (R) Ghulam Sarwar Sheikh 
Mr. Justice (R) Farrukh Latif 
 
 
Mr. Justice (R) Pervez Ahmed 
Mr. Justice (R) Muhammad Jehangir Arshad 
Mr. Justice (R) Ahmed Farooq Sheikh 
Mr. Hamid Khan, Sr. ASC.  
Mr. M. S. Khattak, AOR. 
For Justice (R) Mrs. Majida Rizvi 
Mr. Justice (R) Nadeem Azhar Siddiqui 
Mr. Justice (R) Tariq Mehmood 
Justice (R) Mrs. Qaiser Iqbal 
Mr. Munir A. Malik,Sr.ASC. 
Mr. Faisal Kamal Alam, ASC. 
For Mr. Justice (R) Shah Abdul Rashid 
Mr. Rafiq Rijwana, ASC. 
For Mr. Justice (R) Khan Riaz-ud-Din Khan 
Mr. Justice (R) Saeed-ur-Rehman Farrukh 
Mr. M. Akram Sheikh, Sr. ASC. 
For Mr. Justice (R) Amjad Ali 
Mr. Farhat Nawaz Lodhi, ASC 
For Mr. Justice (R) Riaz Kiani 
Mr. Justice (R) Aqil Mirza 
Mr. Justice (R) Sharif Hussain Bokhari 
Mr. Justice (R) Ghulam Muhammad Qureshi 
Mr. Justice (R) Abdul Hafeez Cheema 
Mr. Justice (R) Munir Ahmed Mughal 
Mr. Justice (R) Rao Iqbal Khan 
Mrs. Shahida Khurshid, 
w/o Mr. Justice (R) Raja M. Khurshid 
Syed Iftikhar Hussain Gillani,  
Sr. ASC. 
 
For Mr. Justice (R) Raza A. Khan 
 
Mr. Afnan Karim, Kundi, ASC.  
For Mr. Justice (R) Syed Najam-ul-Hassan Kazmi 
Mr. M. Afzal Siddiqui, ASC 
For Mr. Justice (R) Mansoor Ahmed. 
Raja M. Ibrahim Satti, Sr. ASC. 
Mr. Mehmood A. Sheikh, AOR. 
Const. Petition No.127 of 2012 
2 
 
For Mr. Justice (R) Sh. Javaid Sarfraz 
Mr. Justice (R) Fazal-e-Miran Chohan 
Mr. Justice (R) Syed Asghar Haider 
 
Mr. Justice (R) Tariq Shamim 
Mr. Justice (R) M. Nawaz Bhatti  
through widow Mrs. Perveen Nawaz 
Mr. Amir Alam Khan, Sr. ASC 
 
For Mr. Justice (R) Aslam Arian 
Mr. Mehmood A.Sheikh,ASC 
For Mr. Justice (R) Abdul Ghani Sheikh: 
Mr. Abdul Rahim Bhatti, ASC 
 
Mr. Justice (R) Tanvir Bashir Ansari   
Through widow Mrs. Shahnaz Ansari 
Mr. Zaheer Bashir Ansari,ASC 
 
Mr. Justice (R) Sheikh Abdul Rashid 
Mr. Justice (R) Ch. Mushtaq Ahmad Khan 
Mr. Justice (R) Sh. Abdul Manan 
 
Mr. Justice (R) Munib Ahmed Khan 
Mr. Muhammad Munir Peracha, ASC 
For Mr. Justice (R) Muhammad Muzamil Khan 
Mr. Gulzarin Kiani, Sr. ASC 
Ch. Akhtar Ali, AOR 
For Mr. Justice (R) Sher Bahadur 
Mr.Abdul Aziz Kundi,ASC 
For Mr. Justice (R) Iftikhar Ahmed Cheema 
Mr. Justice (R) M.K.N. Kohli 
 
 
Sardar Muhammad Aslam, ASC. 
Raja Abdul Ghafoor, AOR. 
For Widow of Mr. Justice (R) M. Khayar Khan 
Ms. Asma Jehangir, ASC 
For Mr. Justice (R) Ghous Muhammad: 
Rana M. Shamim, ASC. 
For Mr. Justice (R) G.M. Kourejo 
Mr. Justice (R) Ali Sain Dino Metlo 
Nemo. 
 
Mr. Justice (R) Salim Khan  
 
 
Mr. Justice (R) M. Sadiq Laghari 
 
Mr. Justice (R) Abdul Aziz Kundi 
 
Mr. Justice (R) Azam Khan 
 
 
Mr. Justice (R) Hamid Farooq Durani  
In person. 
 
Mr. Justice (R)Abdul Ghafoor Khan Ladhi 
Mr. Justice (R) Mian Ghulam Ahmad 
Mr. Justice(R)Muhammad Ismail Bhatti 
Mr. Justice (R) Ch. Shahid Saeed 
Mr. Justice (R) Sagheer Ahmed Qadri 
Late Justice (R) Abdul Rehman Khan Kaif 
Mr. Justice (R) Abdul Khaliq Khan 
Mr. Justice (R) Qazi Hamid-ud-Din 
Mr. Justice (R) Raja Muhammad Khan 
Mr. Justice (R) Muhammad Raza Khan 
Mr. Justice (R) Said Maroof Khan 
Mr. Justice (R) Attaullah Khan 
Mr. Justice (R) Salim Dil Khan 
Mr. Justice (R) Amanullah Abbasi 
Mr. Justice (R) S.A. Rabbani 
Mr. Justice (R) Shahid Anwar Bajwa 
N.R. 
 
Applicant in HRC-40927-S/2012  
(Mr. Justice (R) Abdul Farooq Pirzada) 
Absent 
 
For the applicant in CMA No.176/2012 
in Const. P. No.Nil/2012: 
Sardar Muhammad Aslam, ASC 
 
Const. Petition No.127 of 2012 
3 
 
On Court notice 
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 Punjab 
Syed Arshad Hussain Shah, Addl: AG, KPK 
 
On Court notice  
(amici curiae): 
Khawaja Haris Ahmed, Sr. ASC 
Mr. Salman Akram Raja, ASC 
 
On Court’s Call: 
Mr. Abdul Qadeer Ahmed, 
Deputy Accountant General, Sindh. 
 
Dates of Hearing: 
26th , 27th, 28th, 29th March, 2013 and 
2nd, 3rd , 8th , 9th , 10th & 11th April, 2013. 
               
JUDGMENT 
 
 
Anwar Zaheer Jamali, J.- By our short order 
announced in open Court on 11.4.2013, this case and the other 
connected cases were disposed of in the following manner:- 
“…..we hereby, in exercise of all the enabling powers vested in 
this Court, hold and declare that the law enunciated in the case 
of Accountant General Sindh and others versus Ahmed Ali U. 
Qureshi and others (PLD 2008 SC 522) is per incuriam and 
consequently this judgment is set aside. The titled appeal is 
accepted and the judgment impugned therein is also set aside. 
Other miscellaneous applications moved therein and in these 
proceedings are dismissed accordingly.” 
In support of above short order, now we proceed to record our 
detailed reasons as under:- 
2. 
This Petition, for suo moto review of judgment dated 
6.3.2008, passed in Civil Appeal No.1021 of 1995, other connected 
petitions and miscellaneous applications, emanates from the office 
note dated 21.11.2012 submitted by the Registrar of the Supreme 
Court of Pakistan for the perusal of Honourable Chief Justice, 
which reads thus:- 
“It is submitted that the Civil Petition for Leave to 
Appeal No. 168-K of 1995 was filed in this Court by the 
Accountant General Sindh, challenging the validity of 
the judgment of High Court of Sindh, at Karachi, dated 
02.02.1995, wherein the Court had granted the relief of 
pension to the respondent (since dead), a former judge 
Const. Petition No.127 of 2012 
4 
of the High Court of Sindh, who  while holding the post 
of District and Sessions Judge was posted as Secretary 
to the Government of Sindh, Law Department and was 
elevated as Additional Judge, High Court of Sindh in 
1985. He retired on 25.10.1988 and was allowed 
pension at the rate of Rs.4,200 per month with the 
benefit of commutation, gratuity and additional sum of 
Rs.2,100 per month as cost of living allowance payable 
to a retired Judge of the High Court under paragraph 
16-B of President's Order No.9 of 1970, as amended by 
P.O. No.5 of 1988. In pursuance of the Constitution 
(Twelfth Amendment) Act, 1991 (Act XIV of 1991), the 
pension of the respondent was revised and fixed as 
Rs.6300 per month and thereafter by virtue of P.O. No.2 
of 1993, the pension of retired Judges of superior 
judiciary was again revised, wherein the pension of High 
Court Judges was fixed with minimum and maximum 
ratio of Rs.9.800 and Rs.10,902 per mensum but this 
increase in pension was declined to the respondent on 
the 
basis 
of 
departmental 
interpretation 
of 
the 
President's Orders referred to above read with Fifth 
Schedule 
of 
the 
Constitution. 
The 
respondent 
thereafter, invoking the Constitutional jurisdiction of 
the High Court, filed a constitution petition wherein he 
sought a declaration that he was also entitled to the 
benefit of P.O. No.2 of 1993. Relief was granted to him 
by the Sindh High Court. The Accountant General, 
Sindh feeling aggrieved approached this Court by filing 
said Civil Petition for Leave to Appeal. 
 
2.  
Leave to appeal was granted by this Court 
vide order dated 28th August 1995, on the following 
terms: 
"2. So far the main petition is concerned, it is 
submitted by the learned Deputy Attorney General for 
the petitioner that respondent No.1 was a District and 
Session Judge and was elevated as Judge of the 
High Court in July, 1985 and retired after completing 
tenure of three years two months and twenty-seven 
days in that capacity, hence for the purpose of 
pension his case is covered by Article 15 of the High 
Court Judges (Leave, Pension and Privileges) Order, 
1970, which is applicable to such judges of the High 
Court who retire before completion of five years 
service in the High Court and are entitled to draw 
pension as having retired from the service they were 
taken from for elevation to the High Court. 
 
Const. Petition No.127 of 2012 
5 
3. Leave is granted to examine the following 
questions. Firstly, whether for claim of respondent 
No.1 for extra/maximum pension writ petition before 
the High Court was competent to and maintainable. 
Secondly, whether P.O.9/70 is to be read in 
conjunction with P.O.2/93, P.O.3/95 and Article 205 
read 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 or 
decrease the amount of pension with altering the 
terms and conditions as contemplated under Article 
205 read with the Fifth Schedule to the Constitution. 
Fourthly, whether respondent No.1 is entitled to the 
minimum and maximum amount of the pension as 
contemplated under P.O.2/93." 
 
3.  
Pending disposal of the Appeal, a number of 
other retired Judges of the High Courts, who were not 
allowed pension on the ground that they having been 
not put minimum service of five years in terms of 
paragraph 3 of Fifth Schedule to the Constitution were 
not entitled to the grant of pension, moved a joint 
representation to the President of Pakistan, through the 
Ministry 
of 
Law, 
Justice 
and 
Human 
Rights, 
Government of Pakistan and having received no reply, 
filed direct petitions before this Court under Article 
184(3) of the Constitution, whereas, some of the retired 
Judges filed miscellaneous applications to be impleaded 
as 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 in 
view of the nature of right claimed in these petitions, 
this withdrawal was inconsequential to the right of 
pension of the judges. The appellant in the main appeal 
and the petitioners in the other constitution petitions 
sought declaration, as under:  
 
a. 
The provision of President's Order No.3 of 
1997 was in derogation to Article 205 of the 
Constitution read with Fifth Schedule of the 
Constitution wherein the right of pension of 
only those Judges who have put minimum five 
years of service as Judge of the High Court, 
was recognized. 
 
 
 
b. 
The retired Judges of the High Court, 
irrespective of their length of service were 
entitled to the grant of pension, as per their 
entitlement under Article 205 read with 
paragraph 2 of the Fifth Schedule of the 
Constitution. 
 
4.  
On 06.3.2008, the Civil Appeal No. 1021 of 
1995 and the connected constitution petitions involving 
Const. Petition No.127 of 2012 
6 
common question of law and facts, were disposed of 
through the single judgment (PLD 2008 SC 522) by 
three member Bench of this Court comprising Mr. 
Justice Nawaz Abbasi, Mr. Justice Muhammad Qaim 
Jan Khan and Mr. Justice Muhammad Farrukh 
Mahmud 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 and 
26/2007, filed by the retired Judges of the 
High 
Courts 
are 
allowed 
and 
the 
petitioners/applicants in these petitions and 
miscellaneous applications, along with all 
other retired Judges of the High Courts, who 
are not party in the present proceedings, are 
held entitled to get pension and pensionary 
benefits with other privileges admissible to 
them 
in 
terms, 
of 
Article 
205 
of 
the 
Constitution read with P.O.No.8 of 2007 and 
Article 203-C of the Constitution read with 
paras 2 and 3 of Fifth Schedule and P.O. No.2 
of 1993 and P.O.3 of 1997 from the date of 
their respective retirements, irrespective of 
their length of service as such Judges.” 
 
5.  
It is evident from the above that the matter 
was decided on the basis of High Court Judges 
(Pensionary Benefits) Order, 8 of 2007. This Order was 
promulgated on 14.12.2007 and at the time of decision 
of the matter was considered as a valid piece of 
legislation. 
But 
subsequently, 
vide 
 
this 
Court 
Judgment dated 31.07.2009 (Sindh High Court Bar 
Association V. Federation of Pakistan), reported as (PLD 
2009 SC 879) this P.O 8 of 2007 was declared 
unconstitutional, illegal, ultra vires and void ab initio. 
The relevant paragraph of said judgment is reproduced 
as under: 
 
 
“179. All the acts/actions done or taken by General 
Pervez Musharraf from 3rd November, 2007 to 15th 
December, 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 of 
being condoned. These include Proclamation of 
Emergency and the PCO No.1 of 2007 issued by him 
as Chief of Army Staff and Oath Order, 2007 issued 
by him as President of Pakistan in pursuance of the 
aforesaid two instruments, all dated 3rd November, 
2007; Provisional Constitution (Amendment) Order, 
2007 
dated 
15th 
November, 
2007; 
Constitution 
(Amendment) Order, 2007 (President's Order No.5 of 
2007 dated 20th November, 2007); Constitution 
(Second Amendment) Order, 2007 (President's Order 
No.6 of 2007 dated 14th December, 2007);, Islamabad 
Const. Petition No.127 of 2012 
7 
High Court (Establishment) Order 2007 (President's 
Order No.7 of 2007 dated 14th December 2007); High 
Court Judges (Pensionary Benefits) Order, 2007 
(President's Order No.8 of 2007 dated 14th 
December, 2007) and Supreme Court Judges 
(Pensionary Benefits) Order, 2007 (President's 
Order No.9 of 2007 dated 14th December, 2007). 
The aforesaid actions of General Pervez Musharraf are 
also shorn of the validity purportedly conferred upon 
them by the decisions in Tikka Iqbal Muhammad 
Khan's case. The said decisions have themselves been 
held and declared to be coram non judice and nullity 
in the eye of law. The amendments purportedly made 
in the Constitution in pursuance of PCO No. 1 of 2007 
themselves 
having 
been 
declared 
to 
be 
unconstitutional and void ab initio, all the actions of 
General Pervez Musharraf taken on and from 3rd 
November, 2007 till 15th December, 2007 (both days 
inclusive) are also shorn of the validity purportedly 
conferred upon them by means of Article 270AAA.” 
 
6.  
It is further submitted that the issue in hand 
has far reaching implications. The practical effect of the 
judgment is that Judges of the superior courts are 
being granted pension and pensionary benefits without 
any consideration of tenure or length of service.  
 
7.  
It is pointed out that Supreme Court in the 
case of Province of Punjab v. Dr. Muhammad Daud 
Khan Tariq (1993 SCMR 508) held that it is not against 
any principle for the Courts of this country to protect 
the interest of the tax-payers as well as the public 
exchequer notwithstanding the follies or illogical and 
some times even casual attitude of the custodians of the 
public exchequer. Furthermore, this Court in the case 
of Secretary, Board of Revenue, Punjab v. Khalid Ahmad 
Khan (1991 SCMR 2527) held that the Government has 
chosen to spend much more on the litigation instead of 
paying Rs. 15,000 as judgment-debt to the respondent 
towards the discharge of the decree in case where 
substantial justice has been done. Further, although 
the law point has been decided in favour of the 
appellants yet in the interest of justice we do not want 
to inflict further heavy burden on the public exchequer; 
which would indeed be burdened with more expenses. 
 
8.  
The matter is therefore of great public 
importance as huge public money is being expended 
without any legal justification despite the fact that the 
basis of judgment itself has lost its validity. It is 
therefore a fit case for Suo Moto Review. 
 
Const. Petition No.127 of 2012 
8 
9.  
There are precedents, when this Court took 
up issues suo moto in the interest of justice. In the case 
of rowdysim in the Supreme Court premises titled 
Shahid Orakzai v PML(N) (2000 SCMR 1969), a Bench of 
three 
Judges acquitted 
the 
contemnor. 
Criminal 
Original Petition was filed by the Petitioner and the 
same was heard by a Bench of 5 Judges and the same 
was converted into Appeal. It was objected that the 
matter could not be reviewed by filing a Criminal 
Original Petition by a third person who was not party in 
the matter. However, the Counsel for the Contemner 
conceded that this Court is not precluded from recalling 
of its earlier order by taking Suo Moto action on coming 
to know that such miscarriage of justice had occurred 
due 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 Suo 
Moto action on coming to now that sum miscarriage of 
justice has occurred. In yet another judgment, when 
two different interpretations by two Benches of the 
Supreme Court taking contrary views of the judgment of 
Shariat Appellate Bench passed in a pre-emption case 
of Said Kamal Shah, a Suo Moto Review (PLD 1990 SC 
865) was taken by the Shariat Appellate Bench to clarify 
the effect of its judgment given in the said case. Again, 
it was held in the case State v. Zubair (PLD 1986 SC 
173) that if a Judge of  High Court had heard a bail 
application of an accused person, all subsequent 
applications for bail of the same accused or in the same 
case, should be referred to the same Bench/Judge 
wherever he is sitting and in case it was absolutely 
impossible to place the second or subsequent bail 
application before the same Judge, who had dealt with 
the earlier bail application of the same accused or in the 
same case in such cases, the Chief Justice of the 
concerned High Court may order that it be fixed for 
disposal before any other Bench/Judge of that Court.  
The Supreme Court by taking suo moto action of the 
difficulties arising out of the strict implementation of 
the ratio in the State v. Zubair and on receipt of the 
reports from the High Courts and hearing the Attorney 
General of Pakistan and Advocates-Generals of the 
Const. Petition No.127 of 2012 
9 
Provinces it was observed (2002 SCMR 177) that the 
spirit underlying the said case which still held the filed 
was not intended to create difficulties/bottlenecks or to 
work prejudicially to the interest of all concerned. It was 
held that the rule laid down in the above case shall 
continue but due to exigency of service or any other 
sufficient cause departure can be made in the large 
interest of justice and may be referred to any other 
bench for reason to be recorded in writing by the Chief 
Justice. Recently, a Constitution Petition filed for 
revisiting of this Court judgment dated 13.9.2011 
passed in Constitution Petition No. 50/2010 for 
declaratory judgment regarding existence of Article 
186A of the Constitution was treated as Civil Misc 
Application (CMA No. 4711/2012 in Constitution 
Petition No. 50/2010) for the purpose, which awaits 
hearing before the Court.  
 
10.  
In view of the above, if approved, Suo Moto 
action may be taken in the matter for review of 
judgment dated 6.3.2008 passed in Civil Appeal No. 
1021 of 1995 etc and the matter may be fixed before a 
Larger Bench comprising minimum five members.  
 
Registrar 
21.11.2012  
HCJ 
 
 
 
 
 
   22 
 
 
3. 
Taking notice of the facts and circumstances disclosed in 
the above reproduced submission note, coupled with the legal 
position canvassed therein for taking cognizance in the matter, on 
23.11.2012, following order was passed by the Honourable Chief 
Justice of Pakistan:- 
“Perusal of above note prima facie makes out a case 
for examination of points raised therein. Therefore, 
instant note be registered as Suo Motor Misc. 
Petition and it may be fixed in Court in the week 
commencing from 03.12.2012. Notice to Hon’ble 
Retired 
Judges, 
who are beneficiaries 
of 
the 
judgment dated 6.3.2008 be issued. Office shall 
Const. Petition No.127 of 2012 
10 
provide their addresses. Notice to Attorney General 
for Pakistan may also be issued.”. 
It is in this background that subsequently this petition came 
up 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, representing 
eight of the honourable retired judges of the High Court, M/s Riaz 
Kiyani, Muhammad Aqil Mirza, Sharif Hussian Bukhari, Ghulam 
Mehmood Qureshi, Abdul Hafeez Cheema, Dr. Munir Ahmed 
Mughal, Tariq Shamim and Rao Iqbal Ahmed Khan, JJ and the 
widow of one honourable retired Judge Raja Muhammad Khurshid, 
who have been issued notices of these proceedings, came at the 
rostrum and made his submissions as one of the lead counsel for 
these judges.  
5. 
At the outset, he gave a brief summary of the relevant 
facts regarding the services rendered by the judges represented by 
him, to show their actual period of service as judge of the High 
Court before becoming entitled for pensionary benefits in the light 
of judgment dated 6.3.2008, passed in civil appeal No.1021/1995 
and other connected petitions (PLD 2008 SC 522), (hereinafter 
referred to as the “judgment under challenge”). In the same 
context, he also made reference of C.M.A No.802/2013, which 
contains relevant facts as regards their respective service as judge 
of the High Court. He further made reference to the statement in 
writing 
subsequently 
submitted 
by 
him, 
containing 
the 
formulations of his arguments, which read as under:- 
“a. 
Entitlement to the remuneration of the Judges of the Superior 
Courts are guaranteed by the Constitution and no Sub-
Constitutional legal instrument can take away such entitlement. 
Const. Petition No.127 of 2012 
11 
b. 
Para 2 in the Vth Schedule is an independent provision and is not 
to be ‘governed’ by Para 3. 
c. 
Dictum of Qureshi’s judgment reported in PLD 2008 SC 522 was 
not decided ‘on the basis’ of the Presidential Order 8 of 2007, as 
observed in para 5 of learned Registrar’s note, but founded on the 
mandate 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 and 
Schedule V of the Constitution.” 
6. 
The learned Sr.ASC referring to some legal aspects of the 
controversy involved in the present petition, made specific 
reference to all the relevant statutes starting from the Government 
of India Act, 1935 upto the Constitution of 1973 as well as various 
orders and President’s Orders issued in this regard from time to 
time. Making reference to the language of Article 205 read with 
paragraph-2 of its Fifth Schedule, relating to High Court judges, he 
emphasized that the language of paragraph-2 of the Fifth 
Schedule, commencing from the word “Every judge” makes it 
abundantly clear that irrespective of his length of service, every 
judge, once elevated to the High Court is entitled, inter alia, for the 
pensionary benefits while the authority for determination vested 
with the President in terms of this para is only confined to the 
quantum of such pension and nothing more. He added that 
paragraph-3 of the Fifth Schedule to Article 205 of the 
Constitution, which was available in the original text of the 
Constitution of 1973, and subsequently amended in the year 1991, 
was to be read independent and separate from paragraph-2, which 
provides for pensionary benefits for the two categories of the 
honourable retired judges, depending upon their length of service, 
when read in conjunction with it. He reiterated that every judge of 
the High Court is entitled for pensionary benefits, but for the 
determination of quantum of such benefit, they are categorized 
Const. Petition No.127 of 2012 
12 
into two; one, who have served as such for a period of five years or 
more and, the others, having served for less than five years. 
According to Mr. Gillani, insofar as the entitlement of pensionary 
benefits of those judges of the High Courts is concerned, who have 
rendered more than five years of service, there is no dispute or 
controversy at all about their entitlement of pensionary benefits. 
However, for the other category of judges, having rendered less 
than 
five 
years 
actual 
service, 
till 
date 
no 
independent 
determination, as required by law and under the Constitution, has 
been made by the President. At this stage, he also made reference 
to the judgment under challenge to show that it was in this 
background of the controversy that this Court resolved the issue of 
pensionary benefit of all the retired judges, including those, who 
have rendered less than five years service, and such conclusion 
based on valid reasonings is not open to interference in any form. 
More so, in a situation when such judgment was passed more than 
four years ago; it has already been implemented in its letter and 
spirit, and not challenged by the Government or from any other 
corner. 
7. 
Touching to the moral side of this controversy relating to 
payment of pension, he further argued that all judges of the 
superior judiciary, including those who have retired from their 
office before rendering complete five years actual service as High 
Court Judge, are highly respected segment of the society, who need 
to maintain special protocol befitting to their earlier status and 
office; further in terms of Article 207 of the Constitution, they are 
disqualified to practice in the same High Court. In such 
circumstances, merely due to the fact that they have rendered less 
Const. Petition No.127 of 2012 
13 
than five years of service in the said position, they cannot be 
discriminated and deprived of such benefit, which in turn would, 
in many cases, result in leaving them at the mercy of the society 
for the purpose of meeting their financial needs in the old age. In 
order to gain support to his submissions, learned Sr. ASC further 
made reference to 12th Constitutional Amendment; President’s 
Order No.2 of 1993 (PLD 1994 C.S 192) and President’s Order No.5 
of 1996 (PLD 1997 C.S 199) and relied upon the cases reported as 
M.A Rashid v. Pakistan (PLD 1988 Quetta 70), Ahmed Ali U. 
Qureshi v. Federation of Pakistan (PLD 1995 Karachi 223) and I.A 
Sharwani v. Government of Pakistan (1991 SCMR 1041). Amongst 
these cases, in the 1st case decided by learned Division Bench of 
Balochistan High Court on 08.5.1988, a dispute was agitated by 
honourable retired Justice M.A Rashid, as regards the entitlement 
of his pensionary benefits under the High Court Judges (Leave, 
Privileges and Pension) Order, 1970 qua the effect of amending 
order 5 of 1983, of which benefit was refused to him. In this case, 
the honourable Judge of the Balochistan High Court had  initially 
adorned the office in that position on 07.10.1974, after being 
elevated to the High Court of Sindh and Balochistan. Thereafter he 
ceased to hold the office as Judge of the Balochistan High Court 
w.e.f. 25.3.1981, after having served for a period of more than six 
years. The Court, while holding him entitled for the benefit of 
amending order 5 of 1983, concluded that Constitution is a 
fundamental document and while interpreting a provision of the 
Constitution, article thereof must receive a construction which 
would be beneficial to the widest maximum extent. Moreover, 
making reference to some Presidential Orders, the Court observed 
that such Orders nowhere stipulate that the benefit of these 
Const. Petition No.127 of 2012 
14 
Presidential Orders would not be available to the Judges who had 
retired before the dates mentioned in the two orders, as the Orders 
are clear and admit of no ambiguity, therefore, the necessary 
conclusion would be that the benefit of these Orders would be 
available to all the Judges irrespective of their date of retirement. 
The 2nd case of Ahmed Ali U. Qureshi (supra), need not be 
discussed here as it was against the same judgment that an appeal 
was preferred before this Court, which was decided vide judgment 
under challenge dated 6.3.2008. The 3rd case of I.A Sharwani 
(supra) is also not being discussed here as it will be discussed in 
detail in some later part of the judgment.  
8. 
At the conclusion of his arguments, Mr. Gillani also made 
reference to Article 260 of the Constitution to show the definition of 
‘remuneration’, which includes the word ‘pension’, however, when 
confronted with other definitions contained in this Article, he 
conceded that since ‘pension’ has been separately defined therein, 
therefore, its inclusion in the definition of “remuneration” will not 
make much difference. 
9. 
After conclusion of arguments of Mr. Iftikhar Hussain 
Gillani, Mr. Munir A. Malik, learned Sr. ASC, who is representing 
four other honourable retired judges M/s Majida Rizvi, Nadeem 
Azhar Siddiqui, Mrs. Qaiser Iqbal and Tariq Mehmood, JJ, came at 
the rostrum and made his submissions. In the first place, he made 
reference of C.M.A’s No.867 to 869 of 2013, to give some details 
about the services rendered by each one of them as honourable 
judge of High Court, particularly the dates of their appointment as 
an additional judge, permanent judge; and retirement/resignation, 
with total length of their respective service. Before commencing his 
Const. Petition No.127 of 2012 
15 
arguments on legal footing, Mr. Malik, frankly stated that none of 
the retired judge of the High Court represented by him has 
rendered actual service as such for a period of five years, but less 
than five years. In the context of entitlement of pensionary 
benefits, he gave brief history of constitutional legislation and 
other 
provisions 
of 
law 
including 
the 
President’s 
Orders 
promulgated/ issued in the sub-continent before and after the 
independence of Pakistan from time to time and reiterated that 
paragraph-2 of the Fifth Schedule to Article 205 of the Constitution 
of 1973 is to be read independently; it covers the right of “every 
judge” of the High Court for the purpose of pensionary benefit to be 
determined by the President, therefore, irrespective of the fact 
whether no such determination has yet been made by the 
President for the category of those honourable retired judges of the 
High Court, who have rendered service as such for less than five 
years, they are entitled for the pensionary benefits. When 
confronted with the query as to how and in what manner the 
quantum of such pension for these judges could be determined, if 
no mode of determination in this regard is available before us in 
any form, he candidly stated that as yet no such determination has 
been made by the President even once, nor this matter was earlier 
agitated 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 before 
that under the Constitution of 1956 or 1962 etc.  The pith and 
substance of his submissions was that “every judge” as mentioned 
in paragraph-2 of the Fifth Schedule to Article 205, has its own 
connotation and significance which makes it abundantly clear that 
they all are entitled for pensionary benefits, but only the question 
of determination of quantum of pension is left with the President in 
Const. Petition No.127 of 2012 
16 
line with the spirit of paragraph-2 and nothing more. For this 
reason, in either of the two situations when paragraph-2 is read 
separately, independently and hermetically or together with 
paragraph-3, the claim of every retired judge of the High Court for 
pensionary benefits is fully established. In order to add force to his 
submissions about the entitlement of every judge of the High Court 
for pensionary benefits, he also laid stress upon Article 207 of the 
Constitution, which places an embargo on every honourable retired 
judge of the High Court from practicing within the territorial limits 
of the same High Court, wherein he has served as a permanent 
judge even for a single day. In between the lines, his submission 
was that when such an embargo becomes operative against 
honourable retired judges soon after their confirmation then the 
condition of five years minimum length of service for their 
entitlement to pension as judge of the High Court seems to be 
inconsistent, illogical, harsh and violative of Article 18 of the 
Constitution. He also made reference to the National Judicial 
Policy 2009 and 2012 and contended that even after retirement, 
honourable judges of the High Court are required to maintain 
befitting standard of living in the society, which may not be 
possible for them under financial constraints, thus, their claim for 
entitlement of pension even for less than five years actual service is 
fully justified and in accordance with law. However, he added that, 
indeed, retired judges of the High Court, who have rendered less 
than five years service as such and those who have rendered five 
years or more service, cannot be placed in the same category for 
the purpose of pensionary benefits. He also conceded to the 
position that as yet, not even once any determination regarding 
pensionary benefits of honourable retired judges, who have 
rendered less than five years service, has been made by the 
Const. Petition No.127 of 2012 
17 
President and such purported inaction on his part has never been 
challenged earlier in the history of the Sub-continent and our 
Country either under the dispensation of Government of India Act, 
1935 or the Constitutions of 1956, 1962 and 1973, except the 
present litigation emanating from the case of Ahmed Ali U. 
Qureshi. In his further submissions learned ASC also dilated upon 
the concept of independence of the judiciary as a third pillar of the 
State, which, according to him, also covers its financial 
independence qua right to pension for every judge of the High 
Court irrespective of his length of service in the office.  
10. 
Mr. Munir A. Malik, learned Sr. ASC in his further 
arguments, made reference to the office note dated 21.11.2012, 
submitted by the Registrar of Supreme Court of Pakistan for the 
perusal of Honourable Chief Justice of Pakistan, which formed 
basis of these proceedings and contended that no doubt vide 
judgment in the famous case of Sindh High Court Bar Association 
v. Federation of Pakistan (PLD 2009 SC 879), President’s Orders 
No.8 of 2007 dated 14.12.2007 and Judges Pensionary Benefits 
Order 9 of 2007, have been declared to be coram non judice and 
nullity in the eyes of law, but on the basis of this case alone, the 
judgment under challenge cannot be set aside, as many other 
strong independent reasons have been recorded in its paragraphs 
1 to 19, which still  hold the field as alternate grounds for grant of 
pensionary benefits. Further submissions of Mr. Malik was that 
even if the Court comes to the conclusion about the non-
entitlement of pensionary benefits for the honourable retired 
judges of the High Court, having rendered less than five years 
service, keeping in view their high status in the society and 
bonafide implementation of the judgment under challenge, any 
Const. Petition No.127 of 2012 
18 
order contrary to it, if passed, should be made operative 
prospectively 
and 
not 
retrospectively. 
During 
his 
further 
arguments, Mr. Munir A. Malik, made detailed reference of P.O 
No.9/1970, PO No.7/1991, P.O No.2/1993, P.O No.3/1995, P.O 
No.5/1995, P.O No.3/1997 and 12th Constitutional Amendment in 
an effort to show that it will be a legitimate and holistic approach if 
the claim of honourable retired judges of the High Court, who have 
rendered less than five years actual service, is looked into 
pragmatically and liberally in order to determine their right and 
quantum of pension, which exercise has not yet been undertaken 
by the President, though required under the mandate of the 
Constitution. Making reference to the case of one of the honourable 
retired judge of Sindh High Court Ms. Majida Rizvi, he also brought 
to 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 reference 
to the principles of locus poenitentiae etc and cited the following 
cases:- 
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 dispute 
between the students of a medical college and the educational 
institutions, the provisions of Article 25 of the Constitution were 
dilated upon and in that context it was held that the judgment 
Const. Petition No.127 of 2012 
19 
would be operative from the date of its announcement and would 
have no retroactive legal implications. In the case of M/s Haider 
Automobile Ltd (supra) and other connected case titled Province of 
West Pakistan versus Manzoor Qadir Advocate and another, 
dispute revolved around the availability of right of practice to a 
retired judge of the High Court of West Pakistan in view of the bar 
imposed by Ordinance II of 1964. The Court held that the 
legislature is competent to make a law and has full and plenary 
powers in that behalf and can even legislate retrospectively or 
retroactively. There is no such rule that even if the Legislature has, 
by the use of clear and unambiguous language, sought to take 
away a vested right, yet the Courts, must hold that such a 
legislation is ineffective or strike down the legislation on the 
ground that it has retrospectively taken away a vested right. After 
detailed discussion, the learned five members Bench of the apex 
Court unanimously held that the two learned former judges were 
debarred by Ordinance No. II of 1964 from practicing in the High 
Court of West Pakistan or any Court or tribunal subordinate to it. 
In the case of Elahi Cotton Ltd, discussing some broad principles 
of interpretation of statutes qua constitutional provisions view 
expressed by the Court was that the law should be saved rather 
than be destroyed and the Court must lean in favour of upholding 
the Constitutionality of a legislation, keeping in view that the rule 
of Constitutional interpretation is that there is a presumption in 
favour of the Constitutionality of the legislative enactments unless 
ex facie it is violative of a Constitutional provision. It was further 
held 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 
20 
which has arisen, effectively. The interpretation cannot be narrow 
and pedantic, but the Court's efforts should be to construe the 
same broadly; so that it may be able to meet the requirements of 
an ever changing society. The general words cannot be construed 
in isolation but the same are to be construed in the context in 
which they are employed. In other words, their colour and contents 
are derived from their context. In the case of Amir Khatoon, in 
criminal proceedings, principle of interpretation of statute was 
discussed and it was held that if a provision of law is presenting 
some difficulty in interpretation, it has to be so interpreted as to 
harmonise with the other provisions of the Act of which it is a part 
and it is only when there is a manifest and established failure to 
harmonise it with the other provisions that it either prevails over 
other provisions or yields to the other provisions. It was further 
observed that provisions of any particular Act are to be so 
interpreted as to harmonise and to remain consistent with the 
other laws having a relevance or nexus with the law sought to be 
interpreted. In the case of R v A, involving criminal proceedings 
relating to some sexual offence, expressing his view on the 
principle of reading down, it was observed by a learned Member of 
the Bench that this principle is at least relevant as an aid to the 
interpretation of section 3 of the 1998 Act against the executive. As 
in accordance with the will of parliament reflected in section 3, it 
will sometimes be necessary to adopt an interpretation which 
linguistically may appear strained. The techniques to be used will 
not only involve the reading down of express language in a statute 
but 
also 
the 
implication 
of 
provisions. 
A 
declaration 
of 
incompatibility is a measure of last resort. It must be avoided 
unless it is plainly impossible to do so. If a clear limitation on 
Const. Petition No.127 of 2012 
21 
convention rights is stated in terms, such an impossibility will 
arise. 
12. 
At this stage, Mr. Rafique Rijwana, learned ASC, who is 
representing honourable retired Justice Shah Abdul Rasheed in 
these proceedings, made his submissions. He gave relevant dates 
of his appointment and retirement to show that at the time of 
retirement on 11.2.1986, he had served as a judge of the High 
Court for 04-years, 07-months and 05-days. He did not advance 
any further arguments except adopting the arguments of Syed 
Iftikhar Hussain Gillani, learned senior ASC, who has already 
made his submission in this case, as noted above. 
13. 
Mr. Hamid Khan, learned Sr. ASC, who is representing 
seven honourable retired judges of the High Court, at the 
commencement of his submissions, made reference to the material 
placed on record by him alongwith C.M.As No.847 to 853 of 2013 
to give details regarding the service of each of the honourable 
retired judges represented by him, so as to show their actual 
length of service as judges of the High Court. For the purpose of 
clearity in his arguments, he divided the honourable retired judges 
represented by him into two categories i.e. Rana Muhammad 
Arshad Khan and Muhammad Jehangir Arshad, two honourable 
retired judges, who were elevated to the Bench from the bar and 
the remaining five retired judges, who before their elevation, had 
rendered about thirty years service in the District judiciary in 
different capacities. Details of these honourable retired judges and 
other judges in similar position, regarding service rendered by 
them, is being provided in the judgment separately in the form of a 
chart. 
Const. Petition No.127 of 2012 
22 
14. 
Mr. Hamid Khan, during his arguments, also placed on 
record written formulations, which read as under:- 
1. “Para 2 of the schedule 5 has an independent existence 
from that of para 3 and cannot be read as superfluous 
or redundant, therefore, under the recognized principles 
of independence of the Constitution, the Court is called 
upon to give comprehensive meaning to this para.  
2. Despite having independent existence para 2 has to be 
read with para 3 in order to give meaning of the former 
para, if read together they would cater for two distinct 
classifications, one of those who had put in five or more 
years of service and the other of those who have put in 
less than five years of service and finally within this 
formulation that those, who belonged to each of the 
classification, are entitled to pension and none of them 
can be deprived thereof.  
3. Reading of two paragraphs together, it can also be 
construed that para 3 lays down a bench mark for those 
who are entitled to pension under para 2, this would 
lead to the exercise of principle of proportionality 
nevertheless if will not apply to the petitioners because 
such a principle can only be applied prospectively.  
4. That 
having 
received 
pension 
under 
a 
judicial 
determination rights have been vested in favour of the 
petitioners which cannot be taken away at this stage 
under the established exception to the principle of locus 
poenitentiae.  
5. Having once received pension under the judicial 
determination there is legitimate expectancy on the part 
of the petitioner to continue to receive such pensionary 
amounts, any deprivation at this stage would lead to 
privation and financial problems to the petitioners who 
are of advanced age.  
6. There is a special case relating to judges elevated from 
the subordinate judiciary because:- 
a. They had put a long service before they become 
Judges of the High Court;  
b. They cannot be relegated to the position of those 
who retired as District Judges and so they cannot 
be given the pension of District and Session 
Judges.  
Const. Petition No.127 of 2012 
23 
c. Doing so would be against the independence of 
Judiciary and would undermine the office of a 
Judge of a High Court.”  
15. 
He contended that paragraph-2 of Fifth Schedule to 
Article 205 has an independent existence from paragraph-3, 
otherwise 
this 
paragraph 
would 
become 
superfluous 
and 
redundant, which status cannot be attributed to any piece of 
legislation, 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 have 
argued the case before him, he insisted that paragraph 2 of Fifth 
Schedule to Article 205 visualizes two categories of judges, but 
both of them are equally entitled for pensionary benefits under the 
President’s Orders and in this regard power of determination 
conferred to the President is only confined to the quantum of 
pensionary benefits and not the determination of right to pension 
or otherwise. He further contended that reading of paragraph-2 
together with paragraph-3 lays down benchmark for those who are 
entitled under paragraph-2 and in case no determination has been 
made by the President for entitlement of pension of retired judges 
of the High Court who have rendered less than five years of actual 
service, the principle of proportionality could be applied, but that 
too only prospectively, as the rights accrued and benefits already 
drawn by the honourable retired judges of the High Court through 
judgment under challenge cannot be withdrawn, being stare 
decisis  and past and closed transaction under a judicial 
pronouncement. He further submitted that on account of such 
judicial determination, vested rights have accrued in favour of 
honourable retired judges, which cannot be taken away or 
withdrawn, 
being 
protected 
under 
the 
principle 
of 
locus 
Const. Petition No.127 of 2012 
24 
poenitentiae. To a question posed to him, whether on the principle 
of locus poenitentiae, retired judges represented by him seek 
protection of only those benefits which have already been drawn by 
them or also continuation of such benefits in future, his reply was 
that the principle of legitimate expectancy has accrued in their 
favour to continue receiving such pensionary benefits, which are 
even otherwise very necessary for them to meet their financial 
needs 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 the 
present proceedings. Making his further submissions, he also 
attempted to press into service the principle of past and closed 
transaction based on the premise that the judgment under 
challenge was announced on 6.3.2008 i.e. more than four years 
ago and has already been followed and implemented by the 
concerned government functionaries without any objection.  
16. 
As to the claim of five honourable retired judges of the 
High Court, who were elevated to the bench after rendering more 
than thirty years service in District Judiciary in each case, before 
their elevation to the High Court, he further submitted that for 
grant of pensionary benefits, they cannot be relegated to the 
position of retired District and Sessions Judges as it will be a step 
against the independence of judiciary which will be undermining 
the status and office of the judge of a High Court. Making reference 
to Fifth Schedule to Article 205 of the Constitution of 1973, 
Learned senior ASC submitted that the original paragraph-3 in the 
Fifth Schedule was borrowed from the President’ Order 9 of 1970, 
though in the different form, which was subsequently amended 
and introduced in the present form in the year 1991. When 
Const. Petition No.127 of 2012 
25 
confronted with a query that in case paragraph-2 (ibid) is to be 
read independently and separately, then it contains and denotes 
only one category of judges and not two, the learned Sr. ASC 
conceding to this position, criticized the language of paragraph-3 
(ibid) by submitting that it has been grafted and drafted in the 
Constitution of 1973 in a crude form so as to leave the honourable 
retired judges, who have served the institution for a period of less 
than five years, without entitlement of any pensionary benefits. In 
this regard, he also made reference to some relevant Indian 
provisions of law and contended that there is no specific 
prohibition regarding the entitlement of payment of pension to the 
judges who have rendered less than five years service in the High 
Court before their retirement either in paragraph-2 or paragraph-3 
of the Fifth Schedule to Article 205, therefore, the principle that 
whatever is not prohibited is permissible shall be applied on the 
principles of equity and fair-play to address the unforeseen 
difficulties of the honourable retired judges of the High  Court. The 
pith and substance of his arguments was that looking to the 
constitutional provisions, status of honourable retired judges of 
the High Court in the society and their old age, a pragmatic 
approach may be followed by the Court in order to accommodate 
them for the purpose of granting them pensionary benefits, which 
is lacking determination in specific terms by the President under 
any of the earlier President’s Orders issued from time to time. 
17. 
Mr. Amir Alam Khan, learned ASC, who is appearing in 
this matter for five other honourable retired judges of High Court 
M/s Muhammad Nawaz Bhatti, Fazal-e-Miran Chohan, Syed 
Asghar Haider, Sheikh Javed Sarfraz and Tariq Shamim, JJ, in his 
arguments made reference of C.M.As No.803, 855, 856, 857 and 
Const. Petition No.127 of 2012 
26 
858 all of 2013, filed in the form of concise reply and also got 
recorded their respective dates of appointments as additional 
judge/permanent 
judge 
of 
the 
 
High 
Court, 
date 
of 
retirement/resignation as judge of the High Court, date of 
superannuation and the actual period of their respective length of 
service as judge of the High Court. He candidly stated before us 
that all the five honourable retired judges represented by him, are 
those, who, for one or the other reason, have not rendered actual 
service as a High Court Judge for five years or more and thus for 
the purpose of pension, they have availed the benefit of judgment 
under challenge.  
18. 
As first limb of his arguments, Mr. Amir Alam Khan 
challenged the maintainability of this petition on the ground that 
adjudication made by a three member Bench of this Court in 
exercise of its appellate jurisdiction under Article 185(3) of the 
Constitution, has attained finality in all respect, rather it has been 
implemented by the concerned government functionaries in its letter 
and spirit more than four years ago. Thus, on any legal premise 
these proceedings cannot be subjected to interference, if considered 
to be proceedings under Article 184(3) of the Constitution, which 
confers only limited jurisdiction to this Court relating to the issues 
involving question of public importance and for the enforcement of 
fundamental rights guaranteed under the Constitution. He 
reiterated and added that the judgment under challenge is stare 
decisis, thus, final in all respect, and not open for reconsideration 
in any manner, therefore, these proceedings are not maintainable 
in the present form. Discussing the fallout of judgment under 
challange, he also made reference of Article 203C(9) of the 
Constitution to show that not only retired judges of the High Court 
Const. Petition No.127 of 2012 
27 
having less than five years actual service to their credit have 
become entitled for pensionary benefits, but the Chief Justice and 
other honourable retired judges of the Federal Shariat Court have 
also become eligible and entitled for pensionary benefits despite 
being contract employees for a fixed term of three years. His 
further submission was that since a pragmatic and liberal 
approach has been followed by the Court in the judgment under 
challenge, its spirit may not be negated only on technical grounds 
or the fact that while interpreting the relevant provisions of the 
Constitution and President’s Orders, another view of the matter 
prejudicial to the interest of the retired judges of the High Court, 
was also possible. Mr. Amir Alam Khan, when confronted with the 
question that in case judgment under challenge is found to be per 
incuriam  then what will be its legal position, candidly stated that 
in that eventuality it will be a judgment liable to be ignored for all 
intent and purposes, thus, the ground urged by him for 
challenging the maintainability of these proceedings will not be an 
obstacle for the Court from adjudicating the case on merits. 
19. 
Learned ASC also made reference to paragraph 178 of the 
judgment in the case of Sindh High Court Bar Association (supra) 
in support of his arguments that the judgment under challenge 
has been already protected by application of doctrine of de facto 
exercise of jurisdiction, and as such judgment has been passed by 
a 14 members Bench of the apex Court, therefore, such protection 
cannot be taken away by a five member Bench for denying its 
benefit to the retired judges of the High Court. Dilating upon the 
moral side of these proceedings, learned ASC also argued that all 
the honourable retired judges of the High Court, irrespective of 
their length of service, are highly respected segment of society, who 
Const. Petition No.127 of 2012 
28 
deserve extra compassionate consideration in the matter of grant 
of pension and other benefits, therefore, once a judgment of this 
Court has remained in the field for a period over four years and 
fully acted upon, it shall not be withdrawn so as to take away all 
its benefits retrospectively, being past and closed transaction. 
Advancing his further arguments with reference to the case of 
Fazal-e-Miran Chohan, J., learned ASC pointed out that after his 
elevation to the Bench as Additional Judge of the High Court w.e.f. 
1.12.2004 and confirmation vide notification dated 30.11.2005, he 
resigned from the service under very special circumstances on 
11.10.2009, though otherwise his date of superannuation was 
25.12.2010. Leaving apart these facts, which need sympathetic 
consideration for extending him the pensionary benefits, in this 
manner he has actually served as Judge of the High Court for a 
period of 04-years, 10-months and 09-days. Thus, upon reading 
para 29 of President’s Order No.3 of 1997, together with service 
regulation No.423 of the Civil Service Regulations (in short “CSR”), 
providing for automatic relaxation/concession of six months in 
case of short service of a civil servant, he is otherwise also entitled 
for pensionary benefits, independent to the ratio of judgment 
under challenge. In this context, he also placed reliance upon the 
cases Secretary Finance Division, Islamabad v. Muhammad 
Zaman, Ex-Inspector, I.B., Islamabad (2009 SCMR 769) and 
Muhammad Aslam Khan v. Agricultural Development Bank of 
Pakistan (2010 SCMR 522). In the first case of Secretary Finance 
Division (supra), with reference to regulation No.423 of CSR, of 
which benefit was claimed by the legal heirs of a deceased 
government employee/pensioner, it was held that regulation 
No.423 of CSR is without any qualification and is not restricted to 
Const. Petition No.127 of 2012 
29 
pensionary benefit of a widow. Of course, regulation No.423(2) 
empowers the competent authority to condone the deficiency of 
more than 6 months but less than one year where an officer has 
died while in service, or has retired under circumstances beyond 
his control. In this context, the case of Postmaster-General Eastern 
Circle (E.P.) Dacca and another v. Muhammad Hashim (PLD 1978 
SC 61) was also refered wherein it was held that if the Rules were 
capable of bearing a reasonable interpretation favourable to the 
employee then that interpretation should be preferred. In the 
second case of Muhammad Aslam Khan (supra), again the scope of 
regulation No.423 of CSR was discussed with reference to the facts 
of the case, where a retired government servant, who had served 
for 31 years, 11 months and 14 days and was short of 17 days 
towards completion of 32 years, was claiming pensionary benefits 
for 32 years. The Court held that regulation No.423(1) of CSR 
under Chapter XVII with the heading "Condonation of 
Interruptions and Deficiencies" would undoubtedly suggest that 
the shortage of period not exceeding six months become 
automatically condoned, rather shortage of period exceeding six 
months was also condonable by competent authority, provided 
the conditions under regulation No.423(2) of CSR were fulfilled. 
20. 
At the conclusion of his arguments he also pointed out 
the incident of plane crash, which took the life of honourable 
Justice Muhammad Nawaz Bhatti in the line of his duty on 
10.7.2006, who otherwise would have reached the date of his 
superannuation on 31.8.2009, after rendering service of roughly 
04-years and 09-months. In this context, he stressed for a merciful 
and lenient view in the matter for the widow and orphans of the 
deceased judge. 
Const. Petition No.127 of 2012 
30 
21. 
Mr. Muhammad Akram Sheikh, who is representing 
before us M/s Saeed-ur-Rehman Farrukh and Khan Riaz-ud-Din 
Ahmed, JJ, at the commencement of his arguments made 
reference of C.M.A No.871 and 872 of 2013 to give relevant dates of 
their appointment as Additional Judges/permanent judges of the 
High Court and date of their retirement on 31.7.1998 and 
31.12.1997 respectively. According to his calculations, the actual 
period of service rendered by them, including the period of gap in 
their service, both of them have served as a Judge of the High 
Court for a period of more than five years and thus, their cases are 
not 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 and 
liable to be withdrawn/set aside. However, when we have looked 
into some relevant factual aspects of the case in the context of 
their actual period of service as judge of the High Court, we have 
noticed 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 service 
as Judge of the High Court is excluded from consideration in line 
with the definition of actual period of service given under 
paragraph-2 of President’s Order No. 3 of 1997, which provides for 
only computing the actual service for eligibility and payment of 
pensionary benefits. Learned ASC making reference to Fifth 
Schedule to Article 205 of the Constitution, also attempted to show 
the element of discrimination in the matter of entitlement of 
pensionary benefits for a retired judge of the High Court and a 
retired judge of the Supreme Court, as separately provided in the 
said Schedule. In this regard, his submission was that no 
Const. Petition No.127 of 2012 
31 
minimum period of service as a judge of the Supreme Court is 
prescribed in the first part of the Schedule relating to right to 
pension while the condition of minimum five years service for 
entitlement of pensionary benefits has been discriminately made 
applicable for the retired judges of the High Court. Learned ASC, 
during his arguments, also made reference to the case of I.A 
Sharwani (supra), to lay stress to his arguments upon the right of 
pension 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 is 
not only uncharitable from its language, but also based 
on wrong premise. 
b. 
Pensionary benefits paid to the retired judges on the basis 
of judgment under challenge is past and closed 
transaction and stare decisis, thus, no order for its 
recovery can be made even if the said judgment is 
reviewed and put at naught. 
c. 
Though the principle of stare decisis has very limited 
application to the proceedings before the Supreme Court, 
being apex Court, but the rights and obligations 
determined under any proceedings shall be considered as 
a past and closed transaction, which has created vested 
rights under the judicial pronouncement in favour of 
some party. 
d. 
Suo moto exercise of jurisdiction in the present 
proceedings in any form are not maintainable under the 
law 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 
32 
High Court (PLJ 1991 Lahore 471), Abdul Rehman 
Antulay v. Union of India (AIR 1984 SC 1358). In case the 
present proceedings are being entertained under Article 
184(3) of the Constitution, then no violation or breach of 
any fundamental right of any citizen of this Country has 
been urged, which is sine qua non for exercise of such 
jurisdiction. 
e. 
Principle of res judicata is squarely applicable after lapse 
of five years of pronouncement of judgment in the case 
under 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 1968 SC 1196) and 
Amalgamated Coalfields v. Janapada Sabah (AIR 1964 SC 
1013). 
f. 
The honourable retired judges of the High Court received 
the pensionary benefits on the basis of judgment under 
challenge in good faith and the bonafide orders of the 
apex Court, therefore, question of its refund does not 
arise, even if the said judgment is reviewed or revisited.  
23. 
At the conclusion of his arguments, with reference to the 
plea of stare decisis, Mr. Sheikh also read some passage from the 
book titled as “Fundamental Law of Pakistan” authored by Mr. A.K. 
Brohi, a prominent jurist of this country. In the context of past and 
closed transaction, he also placed reliance upon the cases of Miss 
Asma 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 2000 
SC 111). 
Const. Petition No.127 of 2012 
33 
24. 
In the case of Miss Asma Jillani (supra), dealing with a 
criminal appeal wherein question arose, whether the High Court 
had jurisdiction under Article 98 of the Constitution of Pakistan 
(1962) to enquire into the validity of detention under the Martial 
Law Regulation  No.78 of 1971 in view of the bar created by the 
provisions of the Jurisdiction of Courts (Removal of Doubts) Order, 
1969 and the doctrine of law enunciated in the case of State versus 
Dosso (PLD 1958 S.C. (Pak.) 533), the successive manoeuvrings for 
usurpation of power under the Pseudonym of Martial Law were 
justified or valid, the Court while discussing various principles of 
interpretation of statutes held that: no duty is cast on the Courts 
to enter upon purely academic exercise or to pronounce upon 
hypothetical questions: Courts’ judicial function; is to adjudicate 
upon real and present controversy formally raised before it by the 
litigant; Court would not suo moto raise a question or decide it; 
doctrine of stare decisis is not inflexible in its application; law 
cannot stand still nor can the Courts and Judges be made mere 
slaves of precedent. In this case finally upholding the doctrine of 
necessity it was further observed that the transactions which are 
past and closed may not be disturbed as no useful purpose can be 
served by reopening them.  
25. 
In the case of Sh. Liaqat Hussain (supra) reviewing the 
jurisdiction of the Apex Court under Article 184 (3) of the 
Constitution, it was held that law if validly enacted cannot be 
struck down on the ground of malafide but the same can be struck 
down on the ground that it was violative of Constitutional 
provision. Further with reference to Article 6 of the Constitution, 
application of doctrine of necessity was rejected. Moreover, the 
concept of public importance within the meaning of Article 184 (3) 
Const. Petition No.127 of 2012 
34 
of the Constitution was discussed in detail and it was held that 
under Article 9 of the Constitution right of access to justice to all is 
a fundamental right guaranteed to every citizen of the country. 
However, in the end this petition and other connected petitions 
under Article 184(3) of the Constitution, challenging the Pakistan 
Armed Forces (Acting in Aid of the Civil Power) Ordinance 1998 
promulgated on 20th November, 1998, thereby empowering the 
Military Courts to try civilians for civil offences, were dismissed in 
the terms as detailed in the short order dated 17.2.1999.  
26. 
In the case of Jamat-i-Islami Pakistan (supra), it was held 
that a statute must be intelligibly expressed and reasonably 
definite and certain and it is the duty of the Court to find out the 
true meaning of a statute while interpreting the same. In the same 
context the underlining principle of doctrine of “ejusdem generis” 
was also enumerated. Finally it was held that where the words 
used in a statute are ambiguous and admit of two constructions 
and one of them leads to a manifest absurdity or to a clear risk of 
injustice and the other leads to no such consequence, the second 
interpretation must be adopted. It may also be added here that the 
other cases referred to by the learned Sr. ASC in paragraph “d” and 
“e” relating to the subject of maintainability and res judicata are 
premised on entirely different facts and circumstances, and thus 
have no relevancy or applicability to the present proceedings.  
27. 
Mr. Gulzarin Kiyani, learned Sr. ASC, who is representing 
Mr. Muhammad Muzammal Khan, J., another honourable retired 
judge of the High Court and beneficiary of the judgment under 
challenge, in his arguments firstly made reference to C.M.A 
No.801/2013, and gave relevant dates of appointment of Justice 
Justice Muhammad Muzammal Khan as additional Judge and 
Const. Petition No.127 of 2012 
35 
permanent Judge of the High Court and the date of his retirement, 
to show that admittedly before retirement he rendered actual 
service as a judge of the High Court for a period of 04-years, 05-
months and 27-days. In his further arguments, learned Sr. ASC 
firmly disagreed with the submissions of many other learned ASCs, 
who earlier to him have argued the case, on the point of 
maintainability of this petition as well as about the interpretation 
of paragraphs-2 and 3 of Fifth Schedule to Article 205 of the 
Constitution. He contended that this Court, being the apex Court, 
has wide jurisdiction to exercise suo moto review powers and the 
principle of stare decisis is not application in this regard. To fortify 
his submissions in this regard, he placed reliance upon the case of 
Abdul Ghaffar-Abdul Rehman v. Asghar Ali (PLD 1998 SC 363). 
28. 
Again, making reference to the language of paragraph-2 of 
Fifth Schedule to Article 205 of the Constitution, he strongly 
contended that there is only one category of judges of the High 
Court i.e. “Every judge” mentioned in this paragraph, either read it 
separately and independently or together with paragraph-3, whose 
right to pension are to be determined by the President from time to 
time and until so determined, they are entitled to the privileges, 
allowances 
and 
rights, 
to 
which 
immediately 
before 
its 
commencing day, the judges of the High Court were entitled. For 
this purpose, he also made reference to High Court Judges Order 
No.7 of 1937, President’s Order No.9 of 1970 and President’s Order 
No.3 of 1997, to show that even before partition of the sub-
continent, the rights, qualifications and entitlement of the judges 
of the High Court for the purpose of pension were being regularly 
determined, but at no point in time, any judge of the High Court 
Const. Petition No.127 of 2012 
36 
who had served as such for a period of less than five years, was 
ever found eligible or entitled under any dispensation for payment 
of pension. It is only for this reason that right from the pre-
partition days, till the decision by way of judgment under 
challenge, no retired judge of the High Court was found entitled for 
payment of pensionary benefits if he has served in the High Court 
for any period less than five years. He added that it looks strange 
and ridiculous that in case such right to pension was ever 
available to the retired judge of the High Court at any time during 
the last sixty years, still all of them, who were jurists in their own 
rights and adjudicators of law at the highest level, could not dare 
to interpret such Constitutional provisions or President’s Orders 
issued in furtherance thereof in their favour, so as to avail the 
benefit of pension upon their retirement before completing actual 
service of less than five years. He also argued that paragraphs-2 
and 3 of the Fifth Schedule to Article 205 of the Constitution are to 
be read together and in conjunction with the President’s Orders 
issued under the said constitutional mandate from time to time 
and this scheme of law makes it clear beyond any shadow of doubt 
that there is no entitlement to pension for a judge of the High 
Court, who has served as such for actual period of less than five 
years. 
29. 
Reverting to the case of his own client, learned senior 
ASC read before us paragraph 14, 15, 16 and 29 of the President’s 
Order 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 Court 
Judge, read with regulation No.423(b) of CSR, which in the first 
place provides automatic dispensation of deficiency upto six months 
Const. Petition No.127 of 2012 
37 
and further visualizes, subject to fulfillment of other conditions, the 
discretion for dispensation and relaxation of such period upto one 
year by the President. According to Mr. Kiyani, in such eventuality, 
by pressing into service these constitutional and sub-constitutional 
provisions of the law, having rendered service of four years, five 
months and twenty-seven days, his client has become entitled for 
the pensionary benefits, more so, as benefit of addition of another 
30 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 also 
cited 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. ASC 
submitted that in case the arguments advanced by him are not 
sustained and the judgment under challenge is reviewed/revisited, 
still 
the 
application 
of 
such 
judgment 
should 
be 
made 
prospectively, so as to save the benefits, which his client has 
already availed in the form of pension etc on the basis of judgment 
under challenge.  
31. 
Raja Muhammad Ibrahim Satti, learned Sr. ASC, 
representing in these proceedings one honourable retired judge of 
the High Court, Mr. Mansoor Ahmed, J., also made reference of 
C.M.A No.873/2013, which is a reply on his behalf. He provided 
relevant details about the date of his appointment as additional 
judge of the High Court and the date of his retirement, which 
shows his actual period of service as 03-years, 02-months and 04-
days. Learned ASC in his arguments strongly challenged the 
maintainability of this review petition on account of the fact that it 
has emanated from a note of the Registrar of the Supreme Court in 
Const. Petition No.127 of 2012 
38 
this regard, who has no judicial or administrative jurisdiction or 
authority at all to undertake such critical examination of an earlier 
judgment of the Supreme Court, which has become final, following 
the doctrine of stare decisis, and become past and closed 
transaction. He, however, in the same breath also candidly 
conceded about the unbridled jurisdiction of this Court to correct 
any legal error and submitted that indeed where there is a wrong 
there is a remedy is a well recognized principle of jurisprudence, so 
also the fact that when superstructure is built on wrong legal 
foundation, 
then 
upon 
its 
removal 
in 
any 
form, 
such 
superstructure is bound to collapse. The learned counsel further 
placed on record written formulations of his argument, which read 
as under:- 
“1. 
Whether the Registrar of this Court as defined in Order 1 
Rule 2(1) and has been assigned certain powers and 
functions under Rule 1 of Order III and also Under Order 
V Rule 1, could in any way authorized or competent to 
monitor, supervise, scrutinize or having a watch over the 
Judicial Function of the Court and particularly to 
comment/point out legal flaws or defects in the judgments 
finally passed by the Court or any Bench of the Court. 
2. 
Whether the Registrar who is Executive head of the Office 
has any role to get reopen the Final judgments of this 
Court which have attained finality and if this course is 
adopted it will disturb whole the Scheme of Constitution. 
3. 
Whether even the note of Registrar is not misleading as 
apparently he based the note on total misconception as 
mentioned in para 5 of the Note that the judgment (PLD 
2008 SC 522) is based on PO.NO.8 of 2007 and that 
PO.No.8 of 2007 has been declared void ab-initio in PLD 
2009 SC 879, in fact the judgment is otherwise and it 
mainly based on interpretations of Article 25, 205, 207(3) 
Schedule V of the Constitution read with PO 2 of 1993, PO 
3 of 1997 and reference has been made to PO 8/2007 in 
judgment which in fact removed the anomaly and Retired 
judges were entitled to pension even independent of P.O 
No.8 of 2007 and the said judgment is valid for other 
reasons as mentioned in judgment. 
Const. Petition No.127 of 2012 
39 
4. 
What prompted the Registrar to put up a note on judicial 
side after lapse of almost four years of the passing of 
judgment which had attained finality.  
5. 
Whether it was not proper to place the matter before an 
appropriate Bench to proceed with the matter if at all it 
was necessary whereas the Hon’ble Chief Justice had 
himself decided the fate of note that prima facie the note 
make out case of examination and accordingly issued 
Notices straightaway to the Retired Judges. 
6. 
Whether when a judgment is passed in regular jurisdiction 
under Article 185 the same can be reopened by recourse 
to other jurisdictions under Article 184, 186 of the 
Constitution, Human Right Forum or even Suo Moto. 
7. 
Whether the judgment is also not sustainable on 
additional ground qua discrimination amongst Judges of 
Superior Courts. 
8. 
Whether the retired Judge who never applied or party to 
the judgment can suffer for the Act of Court through 
which benefit is extended to them and at any rate recovery 
could be made for no fault of them. 
9. 
Whether in any case the re-visitation of the judgment 
would be operative retrospectively or prospectively. 
10. 
What should be effects and consequences and way-out 
regarding inaction of President of Pakistan for not 
determining the pension according to the schedule 
regarding the Judges of the High Court who had not 
completed five years as permanent service though he was 
empowered under the Constitution to do so.” 
32. 
In addition to the above, he contended that in case 
present proceedings are deemed to be in exercise of powers of 
review conferred upon this Court under Article 188 of the 
Constitution, read with Order XXVI of the Supreme Court Rules, 
1980, in that eventuality the guiding principle for determining the 
parameters of review as laid down by this Court in the case of 
Abdul Ghaffar - Abdul Rehman  (supra) are to be strongly adhered 
to. Reiterating his stance on the point of maintainability of this 
petition, he stated that in case the note of the Registrar is taken 
out of consideration and upon perusal of the judgment under 
challenge this Court feels it appropriate to proceed further with 
Const. Petition No.127 of 2012 
40 
this matter on its own conclusion, then of course, he has no legal 
objection as to the maintainability of these proceedings. In his 
submissions, Mr. Satti also placed reliance upon the case of Noor 
Jehan v. Federation of Pakistan (1997 SCMR 160) (paragraph-10) 
to show the limited scope of power of review available under the 
law. In this case, examining the scope of exercise of jurisdiction by 
the apex Court under Article 184(3) of the Constitution, while 
refusing to exercise such jurisdiction in that case for the detailed 
reasons incorporated in the judgment, it was held that the 
provisions of Article 184(3) of the Constitution indicate that the 
Supreme Court has been conferred with the power to entertain a 
petition under the above provision directly if the following two 
conditions are fulfilled: 
(i)  
The case involves a question of public importance; and 
(ii)  
The question so involved pertains to the enforcement 
of any of the Fundamental Rights contained in 
Chapter I of Part II of the Constitution. 
In the end, he submitted that in case the judgment under 
challenge is reviewed by this Court and set at naught, then it 
should only be made applicable with prospective effect and not 
retrospectively, so as to protect the benefits already drawn by the 
retired judges, who have throughout acted in a bonafide manner 
and have received such pensionary benefits on the basis of judicial 
pronouncement of this Court and for no fault of their own. 
33. 
Rana M. Shamim, learned ASC for another honourable 
retired Judge of the High Court Dr. Ghous Muhammad, J., during 
his submissions made reference to the contents of C.M.A 
No.742/2013, which is the reply of this petition on his behalf. He 
also gave details of services rendered by Dr. Ghous Muhammad as 
Const. Petition No.127 of 2012 
41 
judge of the District judiciary before his elevation as judge of the 
High Court of Sindh w.e.f. 10.5.1995 and confirmation on 
30.9.1996. Advancing the case of his client, Rana M. Shamim, 
pointed out that the date of superannuation of Dr. Ghous 
Muhammad was 09.4.2001, by which time he would have easily 
completed actual period of his service of more than five years and 
six months, but to his misfortune, through an extra-constitutional 
measure i.e. P.C.O 1 of 2000, he was un-ceremonially removed 
from his office on 26.1.2000, when he was not invited to take oath 
under the new extra constitutional set up. 
34. 
Learned ASC also placed reliance upon the language of 
para 29 of President’s Order No.3 of 1997, read with regulation 
No.423 of CSR to show that despite shortage of less than two 
months in his actual length of service as Judge of the High Court, 
his case for retirement pension is fully matured on the strength of 
these provisions of law. In addition to it, he also made reference of 
Article 270AA(3)(b), which, according to him, provides complete 
redress to the grievance of his client relating to grant of pensionary 
benefits and protection of all other benefits, even in a situation 
when judgment under challenge is reviewed by this Court on any 
other legal premises. For ease of reference, the relevant part of this 
Article of the Constitution is reproduced as under:- 
“Declaration and continuance of laws etc. 
270AA. (l) ……………………………………………………………..  
(2) ……………………………………. …………………………………. 
(3) Notwithstanding anything contained in the Constitution or 
clause (1), or judgment of any court including the Supreme Court 
or a High Court,--- 
(a)  
………………………………………………………………… 
(b)  
Judges of the Supreme Court, High Courts and 
Federal Shariat Court who not having been given 
Const. Petition No.127 of 2012 
42 
or taken oath under the Oath of Office of (Judges) 
Order, 2000 (I of 2000), and ceased to hold the 
office of a Judge shall, for the purposes of 
pensionary benefits only, be deemed to have 
continued to hold office under the Constitution till 
their date of superannuation.” 
35. 
Mrs. 
Asma 
Jehangir, 
representing 
Justice 
Tariq 
Mehmood, honourable retired judge of the High Court and the 
widow of late Justice Khiyar Khan, former Judge of the High Court, 
in her arguments firstly furnished relevant details about their 
career as a judge of the High Court, which reveal that the former 
served as a Judge of the High Court from 06.9.2000 to 6.4.2002 
i.e. 01-year, 07-months and 04-days, while the late husband of 
latter, who was elevated as additional judge of the High Court on 
16.9.1990 and reached the age of superannuation on 18.11.1994, 
had served for 04-years and 03-days. Arguing the case, she firmly 
questioned the maintainability of the petition in the present form 
as according to her, note of the Registrar cannot be taken as suo 
moto review petition against the judgment under challenge before 
this Court. Rather, such conduct of the Registrar is to be 
deprecated. She further argued that even if the discussion and 
observations contained in the judgment under challange, with 
reference to Presidents Order No.8 of 2007, are totally discarded, 
still the said judgment on the basis of other sound reasons is 
sustainable in law and not open to interference under the limited 
scope of review. She further argued that in paragraph-2 of the Fifth 
Schedule to Article 205 of the Constitution word “every judge” also 
includes additional judges for the purpose of pensionary benefits. 
Lastly, supporting the judgment under challenge on the principle 
of stare decisis, she placed reliance upon the judgment in the case 
Const. Petition No.127 of 2012 
43 
of 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 or 
policy that it will not “bow to the lessons of experience and the 
force of better reasoning” by overruling a mistaken precedent……. 
This is especially the case when the meaning of the Constitution 
is at issue and a mistaken construction is one which cannot be 
corrected by legislative action. To give blind adherence to a rule or 
policy that no decision of this Court is to be overruled would be 
itself to overrule many decisions of the Court which do not accept 
that view. 
 
But the rule of ‘stare decisis’ embodies a wise policy 
because it is often more important that a rule of law be settled 
than that it be settled right. This is especially so where as here, 
congress is not without regulatory power…… The question then is 
not whether an earlier decision should ever be overruled, but 
whether a particular decision ought to be. And before overruling a 
precedent in any case it is the duty of the court to make certain 
that more harm will not be done in rejecting than in retaining a 
rule of even dubious validity.” 
………………………………………. 
 
It would be seen that in this case the Court acted upon 
the limitations which they have laid down in the course of their 
decisions, that reconsideration and overruling of a prior decision 
is to be confined to cases where the prior decision ‘is manifestly 
wrong and’ its maintenance is productive of great public mischief. 
The second is the case in –‘G. Nkambule v. The King’, 1950 AC 
379 (Z37), where the Privy Council declined to follow its prior 
decision in – ‘Tuumahole Bereng v. R.’, 1949 AC 253 (X38). In this 
case, the Privy  Council, while it reaffirmed the proposition that a 
prior decision upon a given set of facts ought not to be reopened 
without 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 and 
promulgation of the various statutes and proclamations dealing 
with the effect of the evidence of accomplices in South Africa was 
only partially put before the Board, and much material which has 
now been ascertained was not presented to their Lordships on 
that occasion. The present case, therefore, is one in which fresh 
facts have been adduced which were not under consideration 
when Tumahole’s case (Z38) was decided, and accordingly it is 
one in which, in their Lordships’ view, they are justified in 
reconsidering 
the 
foundations 
on 
which 
that 
case 
was 
determined”. 
Const. Petition No.127 of 2012 
44 
 
……… It will be noticed that the overruling of the prior 
decision in this case was based on the fact that important and 
relevant material was not placed before the Judicial Committee in 
the earlier case. These cases emphasis under what exceptional 
circumstances a prior decision or the highest and final court in a 
country is treated as not binding on itself.” 
36. 
Mr. Sadiq Leghari, another honourable retired judge of 
the High Court, who appeared in person, invited our attention to 
C.M.A No.686/2013, which is his reply to this petition. He gave 
relevant details of his appointment as a judge of the High Court 
before having served the District judiciary in Sindh for a period of 
over thirty years to show that his actual period of service as judge 
of the High Court is 03-years, 10-months and 04-days. He made 
reference to the operative part of the judgment under challenge to 
show that by this judgment, no unrestricted or open ended relief 
has been granted to the retired judges of the High Court, but only 
to those retired judges of the High Court, who have retired in terms 
of Article 195 of the Constitution. As per his formulations, para 33 
of the judgment under challenge excludes the additional judges of 
the High Court from availing its benefit. He, while making 
reference to Article 188 of the Constitution, candidly stated that 
vast powers of review are available with this Court, which are 
aimed to foster the cause of justice and to undo any injustice or 
irregularity, legal or factual. Mr. Leghari also made reference to the 
judgment in the case of Muhammad Mubeen-us-Salam v. 
Federation of Pakistan (PLD 2006 SC 602) to fortify his 
submissions that benefit of judgment under challenge once 
received by him and other retired judges of the High Court has 
created a vested right in their favour and now it is a past and 
closed transaction, which can not be reopened; more over, the two 
parts of Fifth Schedule to Article 205 of the Constitution, relating 
Const. Petition No.127 of 2012 
45 
to the Supreme Court Judges and the High Court Judges, are 
discriminatory, thus, violative of Article 25 of the Constitution. 
37. 
Sardar Muhammad Aslam, learned ASC for M/s M.K.N 
Kohli and Iftikhar Ahmed Cheema, two honourable retired judges 
of the High Court; and also for Mst. Begum Nusrat, widow of late 
Justice Muzaffar Ali Gondal, in his submissions made reference to 
C.M.As No.875/2013 and 1404/2013, which are their replies to 
these 
proceedings 
and 
also 
civil 
miscellaneous 
appeal 
No.176/2012, to show that retired Justice M.K.N Kohli, before his 
resignation, had served superior judiciary as a judge of the High 
Court for 04-years, 08-months, and 28-days. Therefore, besides 
the implication of judgment under challenge, his case was also 
qualified for pension in terms of paragraph-29 of the Presidents 
Order No.3 of 1997, read with Service Regulation No.423, and on 
the principle of rounding up of length of service. As regards the 
case of other retired judge, Justice Iftikhar Ahmed Cheema, he 
gave relevant dates of his joining of service as a Judge of the High 
Court and date of his retirement to show that after having served 
the District judiciary for over two/three decades, he also served the 
superior judiciary for 02-years, 07-months and 07-days, while late 
justice Muzaffar Ali Gondal, who retired as judge of Peshawar High 
Court on 06.5.1995, served as judge of the High Court for 04-years 
and 05-months. He conceded that as per the position as it stands 
today, all retired judges represented by him are beneficiaries of 
judgment under challenge, but for that, he adopted the arguments 
of other senior ASCs, who have earlier argued the scope of Article 
205 read with Fifth Schedule to the Constitution regarding the 
pensionary rights of the judges of the High Court, who have retired 
Const. Petition No.127 of 2012 
46 
from their offices after having served for a period less than five 
years. 
38. 
Mr. M. Afzal Siddiqui, learned ASC representing Mr. 
Najam-ul-Hassan Kazmi, honourable retired judge of the High 
Court, in his brief submissions made reference of CMA 
No.392/2013, filed in these proceedings and for the purpose of 
defending the pensionary right of his client, placed reliance upon 
the 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 encouragement 
for all the right men, who believe in the constitutionalism and 
are of the affirmed commitment that in our beloved country 
there should not be any rule except one under the 
Constitution, that is why the Parliament had not granted 
legitimacy or validity to the actions of 3-11-2007. In view of the 
past history and on plain reading of the constitutional 
provisions relating to the Armed Forces i.e. Articles 243, 244 
and 245, discussed hereinbefore it is abundantly clear that 
Chief of Army Staff, who has been appointed by the President 
in consultation with the Prime Minister has no authority to 
hold the Constitution in abeyance, therefore, condonation has 
to be sought by adopting a legislative intervention, as per past 
practice, from the parliament. In absence of such validation, 
indemnification or legitimization, unconstitutional actions 
taken by a dictator would continue to charge not only to the 
person who had imposed Martial Law (Emergency) but also to 
others as well who had accepted new order imposed in the 
country beneficially. There is no cavil with the proposition that 
unconstitutional 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 by 
no legislative intervention through Parliament, the legitimacy, 
indemnity or validity had been granted by the Parliament. It is 
to be seen that at the time of such unconstitutional Martial 
Law 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 no 
legitimacy, validity or indemnity was obtained from the said 
Const. Petition No.127 of 2012 
47 
parliament. However, after dissolution of National Assembly, 
elections were held on 18-2-2008 and new National Assembly 
commenced its functions from 3rd week of March, 2008 
onward. Meanwhile, Eighteenth and Nineteenth Constitutional 
Amendments were made by the parliament in pursuance 
whereof legislative actions of the Eighth Constitutional 
Amendment and Seventeenth Constitutional Amendments were 
also considered and all those legislative instruments, which 
found to be contrary to the Constitution, were weeded out of 
the Constitution. Interestingly the question of granting validity, 
indemnity 
and 
legitimacy 
in 
respect 
of 
Seventeenth 
Constitutional Amendment was also thoroughly examined and 
the Parliament unanimously indemnified, legitimized and 
validated the oath made by the Judges, under the PCO and 
Oath Order, 2000 by inserting sub Article 3 of the Article 
270AA, which reads as under:-- 
 
"(3) 
Notwithstanding 
anything 
contained 
in 
the 
Constitution or clause (1), or judgment of any court 
including the Supreme Court or a High Court, - 
(a) 
Judges of the Supreme Court, High Courts and Federal 
Shariat Court who were holding the office of a Judge or 
were appointed as such, and had taken oath under the 
Oath of Office (Judges) Order, 2000 (1 of 2000), shall be 
deemed to have continued to hold the office as a Judge or 
appointed as such, as the case may be, under the 
Constitution, and such continuance or appointment, shall 
have effect accordingly. 
(b) 
Judges of the Supreme Court, High Courts and Federal 
Shariat Court who not having been given or taken oath 
under the Oath of Office (Judges) Order, 2000, (I of 
2000), and ceased to hold the office of a Judge shall, for 
the purposes of pensionary benefits only, be deemed to 
have continued to hold office under the Constitution till 
their date of superannuation." 
The above provision in fact has replaced Article 270C inserted 
by the Seventeenth Constitutional Amendment, legitimizing, 
validating and condoning the oath taken by the then Judges 
under the PCO and Oath Order, 2000. Inasmuch as pensionary 
benefits were also extended to the Judges who had declined to 
take oath in pursuance of Emergency and PCO, 2000 read with 
Oath Order, 2000. A perusal whereof clearly indicates that by 
legislative intervention through Parliament, the Judges of the 
Supreme Court, High Courts and Federal Shariat Court who 
were 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 a 
Judge or appointed as such, as the case would be, under the 
Constitution, and such continuance or appointment, would 
have effect accordingly. However, Judges of the Supreme 
Court, High Courts and Federal Shariat Court who were not 
Const. Petition No.127 of 2012 
48 
given or taken oath under the Oath Order, 2000, and ceased to 
hold the office of a Judge were, for the purposes of pensionary 
benefits only, were deemed to have continued to hold office 
under the Constitution till their date of superannuation.” 
He added that in view of this clear enunciation of law by a six 
member Bench of the apex Court, pensionary rights of Mr. Najam-
ul-Hassan Kazmi as a retired judge of the High Court are fully 
safeguarded like the case of honourable retired Justice Dr. Ghous 
Muhammad from the High Court of Sindh, whose case is identical 
and at par to his case. 
39. 
Mr. Abdul Aziz Kundi, a former judge of the Peshawar 
High Court, who appeared before us in person and also for Mst. 
Roshan Bibi, widow of late Justice Sher Bahadur Khan, a former 
judge of the Peshawar High Court, contended that every 
permanent judge of the High Court is entitled for the pensionary 
benefits under paragraph-2 of Fifth Schedule to Article 205 of the 
Constitution, subject to determination by the President and until 
then, as per earlier arrangements. He also argued that when he 
was elevated to the Bench as a judge of the Peshawar High Court, 
the judgment under challenge was applicable and followed with full 
force in favour of all the retired judges of the High Courts for grant 
of pensionary benefits irrespective of their length of service, 
therefore, he had legitimate expectancy for grant of all the 
pensionary benefits upon his retirement, which had taken place on 
31.10.2010, after he having served as a Judge of the Peshawar 
High Court for a period of 01-year, 03-months and 24-days. He 
also outlined the difficulties faced by him upon elevation as 
additional judge of the High Court as a result whereof, he had to 
close 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 
49 
ASCs, urged that in his case retrospective application of the 
judgment of this Court, in case it decides to review the judgment 
under challenge, shall not be made as his case is distinguishable 
on the principle of legitimate expectancy. Arguing the case of Mst. 
Roshan Bibi, widow of late Justice Sher Bahadur Khan, he 
mentioned that the deceased was appointed as additional judge of 
the High Court on 7.4.1967 and he retired as confirmed Judge of 
the High Court on 1.7.1970, after having served for 03-years, 08-
months and 14-days, and thereafter he passed away on 
30.12.1970, but in view of the ratio of the judgment under 
challenge, his widow has been found entitled for all the pensionary 
benefits in terms of paragraph-4 of Fifth Schedule to Article 205 of 
the Constitution. 
40. 
Mr. Mehmood A. Sheikh, learned ASC on behalf of Justice 
Muhammad Aslam Arain, honourable retired judge of the High 
Court, in his arguments made reference of C.M.A No.1829 of 2013. 
He also gave relevant dates to show that before his retirement as 
Judge of the High Court on 11.5.1995, retired Justice Muhammad 
Aslam Arain had served as such for 04-years and 06-months, 
thus, apart from the implication of judgment under challenge, he is 
entitled for pensionary benefits in terms of paragraph-29 of the 
President’s Order No.3/1997, read with Service Regulation No.423, 
which provides for automatic rounding up and relaxation of such 
short period of service upto six months to make it five years of 
service for entitlement of pensionary benefits.  
41. 
Mr. Salim Khan, another honourable retired judge of the 
High Court, who appeared in person to argue his case, made 
reference to C.M.A No.1274/2013, filed by him and also gave 
Const. Petition No.127 of 2012 
50 
relevant dates of his joining as Additional Judge of the High Court 
and date of his retirement as 31.1.2008, to show that he, before 
his retirement, had served as judge of the High Court for a period 
of 03-years and thus entitled for the benefit of judgment under 
challenge on the basis of arguments advanced in this regard by 
other senior ASCs, which he also adopts. 
42. 
Mr. Hamid Farooq Khan, honourable retired judge of the 
High Court, who also appeared in person, gave relevant dates of 
his joining as Additional Judge/permanent judge of the High Court 
and date of his resignation/retirement to show that he actually 
served 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. He 
pointed out that as a result of unforeseen circumstances resulting 
in his resignation/retirement, now he is barred under Article 207 
of the Constitution from practicing in the Peshawar High Court. In 
the end, adopting the arguments of other senior ASCs, he placed 
reliance upon the case of Sindh High Court Bar Association 
(supra). It will be worthwhile to mention here that during the 
proceedings in the above cited case before a fourteen member 
Bench of the apex Court, almost all the judgments/case law cited 
in the present proceedings, was discussed at length in the manner 
that eventually, as detailed therein, all illegal actions of a dictator 
General Pervez Musharraf so also the earlier judgment of the Court 
in Tikka Iqbal Muhammad Khan case, were struck down/set aside. 
Not only this, but a review petition against such judgment tilted 
Justice Khurshid Anwar Bhinder and others v. Federation of 
Pakistan (PLD 2010 SC 483), heard by equal number of judges, 
Const. Petition No.127 of 2012 
51 
was also dismissed with the observation that the Supreme Court 
has unfettered powers under Article 187 and 188 of the 
Constitution, read with Order XXVI of the Supreme Court Rules, to 
do ultimate justice for which earlier review petitions were very 
much maintainable. 
43. 
Mr. Muhammad Munir Peracha, learned ASC, who is 
appearing in this case on behalf of M/s Sheikh Abdul Rashid, 
Chaudhry Mushtaq Ahmed Khan, Chaudhry Abdul Mannan and 
Munib Ahmed Khan, JJ, honourable retired judges of the High 
Court, at the commencement of his arguments made reference to 
C.M.As No.724, 836 and 835 of 2013, filed on behalf of these 
honourable retired judges of the High Court, containing their 
respective dates of appointment as additional judges/permanent 
judges and of their retirement/date on which they ceased to hold 
the office as High Court Judges. He stated that insofar as Mr. 
Justice Munir Ahmed Khan is concerned, he has not filed any CMA 
in reply to these proceedings. From the submissions made before 
us, we have noted that Sheikh Abdul Rashid, before his retirement 
on 31.5.2006, had served as a High Court Judge for 02-years, 08-
months and 28-days; Chaudhry Mushtaq Ahmed Khan, who was 
affectee of the fallout of Al-Jehad Trust v. Federation of Pakistan 
(PLD 1996 SC 324) case, ceased to remain a judge of the High 
Court w.e.f 30.9.1996, but by that time, he had served the 
judiciary for 04-years, 01-month and 04-days; Chaudhry Abdul 
Mannan, 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 by 
the President on 19.10.2009; while Mr. Munib Ahmed Khan had 
Const. Petition No.127 of 2012 
52 
served as a High Court Judge for 03-years, 11-months and 25-
days. Learned ASC, making reference to Article 205 and Fifth 
Schedule to the Constitution qua the judgment under challenge, 
submitted that it is a judgment in rem through which all the 
honourable retired judges, who have rendered less than five years 
service as a High Court Judge, are entitled to avail its benefit, 
thus, no exception could be taken to the claim of respondents 
represented by him. In the same context, he also made reference of 
Article 25 of the Constitution and the case of Hameed Akhtar Niazi 
v. Secretary, Establishment Division, Government of Pakistan 
(1996 SCMR 1185), which in its terms prohibit discrimination 
amongst the persons placed in the similar position and entitle 
others the benefit of earlier judgment, when applicable to their 
case. He further submitted that judgment under challenge is one 
which is not fit to be reviewed by this Bench for any technical 
reasons and if this Court still comes to a contrary conclusion and 
forms its view about the maintainability of these proceedings in the 
positive, then it should be made applicable only prospectively and 
not retrospectively to save the benefits which have been already 
availed by the honourable retired judges of the High Court in a 
bonafide manner. In order to gain support to the case of Chaudhry 
Abdul Mannan, J., who never remained permanent judge of the 
High Court, he also made reference to the definition of ‘Judge’, 
under Article 260 of the Constitution, which also includes an 
additional judge. He summed up his submissions on the note that 
all the honourable retired judges, who have rendered less than five 
years actual service as a High Court Judge, being respectable class 
of the society, having held constitutional post, deserve a 
Const. Petition No.127 of 2012 
53 
sympathetic and lenient view in the matter, which may not be 
prejudicial to their interest. 
44. 
Mr. Afnan Karim Kundi, learned ASC for honourable 
retired Justice Raza Ahmed Khan, before making his submissions, 
in order to give relevant dates of his appointment as additional 
judge, permanent judge and retirement of his client, made 
reference of C.M.A No.1419/2013, to show that he had actually 
served as High Court judge for a period of 03-years, 05-months 
and 04-days, before his retirement on attaining the age of 
superannuation on 05.3.1992. He contended that law relating to 
pensionary benefits is now well developed and provides that such 
benefit to a retired government servant is his hard earned right 
and no more a bounty of the State for certain individuals, 
therefore, an additional judge of the High Court is not entitled for 
any pensionary benefit, but only the permanent judges. He also 
made reference to the language of paragraph-2 of Fifth Schedule to 
Article 205 of the Constitution and argued that opening words of 
this paragraph “every judge” are to be given widest meaning in 
order to extend pensionary benefits to all the honourable retired 
judges of the High Court, irrespective of their length of service as 
such. He added that for fair determination of quantum of pension, 
any reasonable and equitable formula can be drawn by the 
President on the basis of rationalization of pensionary benefits to 
those honourable retired judges of the High Court, who have 
rendered less than five years service, as right now no such scheme 
is provided either in the President’s Order No.9 of 1970 or 
President’s Order No.3 of 1997. 
Const. Petition No.127 of 2012 
54 
45. 
Justice Muhammad Azam Khan, another honourable 
retired judge of the High Court, who appeared in person, made 
reference of C.M.A No.743/2013 to show that he was appointed as 
additional judge of the High Court on 13.6.1998 and was made to 
retire under the PCO of 2000 w.e.f 26.1.2000, after rendering total 
service of 01-year, 07-months and 12-days, thus, he is entitled for 
the benefit of Article 270AA(3)(b), which adequately protects his 
right to pension as affectees of PCO of 2000, resulting in his un-
ceremonial and unconstitutional removal from service as High 
Court Judge. He, however, conceded that even if he had not been 
removed 
under 
the 
said 
PCO, 
on 
attaining 
the 
age 
of 
superannuation he would have retired on 17.3.2001 after 
rendering total service of less than 03 years. He also made 
reference of C.M.A No.940/2008, to show that he was one of the 
contesting party before the Supreme Court in the earlier 
proceedings wherein the judgment under challenge was passed. In 
the end, he stated that on other legal aspects of the matter, he 
adopts the arguments advanced by senior ASC Mr. Iftikhar 
Hussain Gillani. 
46. 
Mr. 
Abdul 
Rahim 
Bhatti, 
learned 
ASC, 
who 
is 
representing Justice Abdul Ghani Sheikh, honourable retired judge 
of the High Court, made reference of C.M.A No.854/2013, to show 
various relevant dates of appointment and retirement of Mr. 
Sheikh after rendering actual service of 03-years and 15-days in 
aggregate. He made reference to the cases reported as Muhammad 
Mubeen-us-Salam (supra) and Muhammad Idrees v. Agricultural 
Development Bank of Pakistan (PLD 2007 SC 681) in support of 
his submission that even if the judgment under challenge is set 
Const. Petition No.127 of 2012 
55 
aside, then its applicability can only be made prospectively and not 
retrospectively. More so, when it is a past and closed transaction 
as the judgment under challenge has been fully implemented by 
the official respondents. 
47. 
Mr. Farhat Nawaz Lodhi, learned ASC for retired Justice 
Amjad Ali Sheikh, a honourable retired judge of the High Court, 
also gave relevant dates of his appointment and retirement to show 
that at the time of his retirement on 22.6.1999, retired Justice 
Amjad Ali Sheikh, has served as a judge of the High Court for a 
period of 02-years, 06-months and 10-days. He further adopted 
the arguments of Mr. Amir Alam Khan, learned ASC on the 
question of maintainability of these proceedings emanating from 
the note of the Registrar, being malicious.  
48. 
At this stage, with leave of the Court, M/s Gulzarin Kiyani 
and Iftikhar Hussain Gillani, learned Sr. ASCs, made their further 
submissions wherein Mr. Kiyani, dilating upon the powers of 
review vested with this Court, made reference to the judgment in 
the case of Pir Bakhsh v. Chairman Allotment Committee (PLD 
1987 SC 145) and also briefly discussed the principles of res 
judicata, stare decisis and prospective and retrospective application 
of various judgments announced by this Court to show that these 
principles are not attracted in the present case, which is to be 
adjudicated upon its own merits, more particularly, when these 
proceedings relate to public exchequer, thus, falling within the 
domain of public interest litigation. He also contended that in a 
case where constitutional provisions are clear in language, no 
doctrine of legitimate expectation can be applied in order to 
support or protect some wrong doing. For this purpose, he also 
Const. Petition No.127 of 2012 
56 
made reference to the High Court Judges Pension Order, 1937, 
President’s Order No.9/1970 and President’s Order No.03/1997, to 
show that earlier to the adjudication vide judgment under 
challenge, it was otherwise also a convention religiously followed 
by all the retired judges of the High Court having rendered less 
than five years service that no claim for pension for such short 
period of service was to be made. In the end, to fortify his 
submissions, 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 of 
Article 141 of the Constitution of India, it was held by a nine 
member Bench of the Indian Supreme Court that there is nothing 
in the Constitution which prevents Supreme Court from departing 
from its previous decision, if it is satisfied of its error and its 
baneful effect on general interests of public. In Constitutional 
matters which effect evolution of country’s polity, Supreme Court 
must more readily correct itself than in other branches of law as 
perpetuation of a mistake will be harmful to public interest, while 
continuity and consistency are conductive to smooth evolution of 
rule 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 the 
case, it was held that where the relevant statutory provisions were 
not brought to the notice of the Supreme Court, which precluded it 
Const. Petition No.127 of 2012 
57 
to exercise power in a case, than it cannot be said that the 
judgment was not per incuriam. In this context reference was also 
made to the case of State of West Bengal v. Anwar Ali (AIR 1952 SC 
75). In addition to it, the maxim “Actus Curiae Neminem Gravabit” 
(an act of the Court shall prejudice no man) was discussed and it 
was held that this maxim is founded upon justice and good sense 
and affords a safe and certain guide for the administration of the 
law; this maxim is not a source of general power to reopen and 
rehear adjudications which have otherwise assumed finality, as 
this maxim operates in a different and narrow area. It was 
illustrated that if owing to the delay in what, the Court should, 
otherwise, have done earlier but did later, a party suffers owing to 
events occurring in the interregnum, the Court has the power to 
remedy it. 
49. 
Mr. Iftikhar Hussain Gillani, in his further submissions 
reiterated that the judgment under challenge cannot be termed as 
a judgment per incuriam, therefore, the benefits already drawn or 
claimed 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 of 
the 
amici 
curiae 
in 
this 
case, 
strongly 
supported 
the 
maintainability of these suo moto proceedings and contended that 
it may be that these proceedings have emanated from the note of 
the Registrar of this Court, but for according legitimacy to these 
proceedings it is the knowledge or notice taken by the Court, which 
is material and not its source. Once this Court finds that some law 
has been wrongly enunciated, it is its prime duty to correct the law 
irrespective of its fallout or effect upon its beneficiaries. He, while 
Const. Petition No.127 of 2012 
58 
criticizing the judgment under challenge, strongly contended that 
there are many legal mistakes floating on the surface of the record 
with reference to the judgment under challenge, thus, it can be 
termed nothing but a judgment per incuriam, and by applying the 
principle of stare decisis, it cannot be saved. He added that even 
otherwise, the rule of stare decisis is not strictly applicable to the 
Supreme Court. Making reference to the High Court Judges 
Pension 
Order, 
1937, 
President’s 
Order 
No.09/1970 
and 
Presidents Order No.03/1997, he argued that no holistic or fair 
view was taken by this Court while passing its judgment under 
challenge and in this regard even prevalent convention and usage 
since the year 1937, having the force of law, were overlooked. He 
further argued that Fifth Schedule to Article 205 of the 
Constitution is not a sub-constitutional legislation, but a part of 
the Constitution in terms of Article 205 of Constitution, thus, it is 
to be read as such and when it is read in the context of prevalent 
President’s Orders from time to time, it makes it very clear that 
length of service of High Court judges has always remained prime 
consideration for grant of pensionary benefits to them or otherwise. 
He also dilated upon the language of paragraph-3 of the Fifth 
Schedule to Article 205 of the Constitution to show its relevancy 
and importance in the matter of determining the entitlement for 
pension of judges of the High Court, who have served for less than 
five years as such. He conceded that of course, paragraph-3 of the 
Fifth Schedule to Article 205 of the Constitution will not control its 
paragraph-2, but at the same time when the whole Schedule is 
read in conjunction with the President’s Order inforce at the 
relevant time, there remains no ambiguity that all those 
honourable retired judges, who have rendered less than five years 
Const. Petition No.127 of 2012 
59 
actual service, excluding those cases which are found entitled for 
the benefit of paragraph-29 (ibid), read with Service Regulation 
No.423, are not entitled for any pensionary benefits. He again 
made reference to various provisions of Judges Order/President’s 
Orders right from the year 1937 till date to show undisturbed 
convention of over 75 years that no judge of the High Court, having 
served less than five years, ever objected to or raised the claim of 
pensionary benefit for a lesser period of service by advancing the 
interpretation of the relevant provisions of law in the manner as 
accepted in the judgment under challenge. Re-agitating the 
applicability of principle of per incuriam to the judgment under 
challenge, learned ASC read before us its paragraphs No.9 to 
paragraph No.22, one by one, to highlight several patent 
deficiencies in it, which brings it within the ambit of judgment per 
incuriam as per the law laid down by this Court in its various 
judgments. He further argued that since the very language of 
judgment under challenge gives its benefit to many others, who 
were not even party to such proceedings before the apex Court, 
therefore, the judgment under challenge is a judgment in rem and 
not a judgment in personam. In the same context, he also made 
reference to Article 203C, paragraph-9 of the Constitution, which 
has widened the applicability of the judgment under challenge to 
the judges of the Federal Shariat Court also. Here he also made 
reference to the case of Mahmood Khan Achakzai  v. Federation of 
Pakistan (PLD 1997 SC 426) to express his point of view on the 
scope 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 doctrine 
embedded in our jurisprudence. Under this doctrine bona fide 
acts in public interest performed by persons assuming authority, 
Const. Petition No.127 of 2012 
60 
which turns out to be illegal, are assumed to have been 
performed by a de jure authority/person and binding. This 
doctrine is intended to avoid dislocation, instability and confusion 
while declaring a de facto authority illegal. In order to create 
stability, regularity and to prevent confusion in the conduct of 
public business and in security of private rights the acts of the 
officers de facto are not suffered to be questioned because of want 
of legal authority except by some direct proceeding instituted for 
the purpose by the State or someone claiming office de jure. 
The doctrine of de facto is based on considerations of 
policy and public interest. For good order and peace of- society 
the title of persons in apparent authority is to be respected and 
obeyed until their title is investigated in some regular mode 
prescribed by law.  
The acts of the officers de facto performed by them within 
the scope of their assumed official authority in the interest of the 
public or third persons and not for their own benefit are generally 
as valid and binding as if they were the acts of officers de jure. 
This doctrine can be applied if the Parliament is declared to be 
illegally constituted and Enactment passed by such Parliament is 
declared unconstitutional. It is only in such situation that to 
preserve 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 Order 
No.03/1997, he supported the claim of those former judges of the 
High Court, who have though rendered less than five years service, 
but are entitled for the benefit of paragraph-29 read with Service 
Regulation No.423. In support of his other submissions, 
particularly on the point of per incuriam, he further cited following 
cases. 
i) 
Sindh High Court Bar Association’s case (supra) 
 
ii) 
Gulshan Ara v. State (2010 SCMR 1162) 
iii) 
Fasih-ud-Din Khan v. Government of Punjab  
(2010 SCMR 1778) 
iv) 
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 
61 
In the case of Gulshan Ara (supra) relating offence under the 
Control of Narcotic Substances Act, 1997, the principle of per 
incuriam was discussed with reference to its dictionary meaning in 
Halsbury’s Laws of England, Fourth Edition, volume 26 in paras 
557-558, and comments on the judgment per incuriam were 
recorded as under:- 
"A decision is given per incuriam when the Court has acted in 
ignorance of previous decision of its own or of a Court of 
coordinate jurisdiction which covered the case before it in 
which case it must decide which case to follow or when it has 
acted in ignorance of House of a Lords' decision, in which case 
it must follow that decision or when the decision is given in 
ignorance of the terms of statute or rule has statutory force." 
In the case of Fasih-ud-Din Khan (supra), also, the meaning of 
phrase per incuriam were dilated with reference to the case of 
Sindh High Court Bar Association (supra) and it was observed that 
connotation of per incuriam is “carelessness”. In the case of Asad 
Ali (supra), the scope of Article 184(3) of the Constitution was 
discussed in detail and, inter alia¸ it was held that Constitutional 
Convention once established has the same binding effect as a 
Constitutional provision, therefore, any breach of such Convention 
can be treated by the Court as a breach of the Constitution to 
which the Convention relates. It was further held that Constitution 
being the basic organic document, which is of a permanent 
character and is not subject to frequent changes, such a basic 
document is necessarily a reflection of the aspirations of its people. 
The Constitution, therefore, is not an imprisonment of the past but 
it takes care of the present and is also alive to the future. The 
cardinal rule of interpretation of a basic document like 
Constitution is that it should be liberally construed and unless the 
context clearly implies a restricted construction, the words and 
Const. Petition No.127 of 2012 
62 
expressions used in the Constitution are to be given widest 
connotation. Moreover, discussing the legal implication of 
retrospectivity or prospectivity of a statute touching the vested 
rights of the parties, it was observed that a new or amending 
statute touching the vested rights of the parties operates 
prospectively unless the language of the legislation expressly 
provides for its retrospective operation. However, the presumption 
against the retrospective operation of a statute is not applicable to 
statutes dealing with the procedure as no vested right can be 
claimed by any party in respect of a procedure. The only exception 
to the retrospective operation of a procedural law is that if by 
giving it a retrospective operation, the vested right of a party is 
impaired then to that extent it operates prospectively. The above 
principle applicable to a new or an amending statute, however, 
cannot be applied strictly to the law declared by the Courts 
through interpretative process. The Courts, while interpreting a 
law, do not legislate or create any new law or amend the existing 
law. By interpreting the law, the Courts only declare the true 
meaning of the law which already existed. Therefore, to that extent 
the law declared by the Court is applicable from the date the law is 
enacted.  
In the case of Federation of Pakistan (supra) dealing with the case 
of civil servant qua the concept of judgments in “rem” and 
“personam”, reference to the definition of these phrases was made 
from Black's Law Dictionary Sixth Edition; the ratio of Hameed 
Akhtar Niazi v. Secretary, Establishment Division (1996 SCMR 
1185) was also discussed with reference to the scope and 
applicability of Article 25 of the Constitution and based on these 
reasons/legal principles, benefit was also extended to those other 
Const. Petition No.127 of 2012 
63 
persons who were equally placed and found entitled for similar 
benefit through an earlier pronouncement of the Court. 
52. 
Mr. Salman Akram Raja, the other amicus curiae 
appointed by the Court, during his submissions read before us 
second part of Fifth Schedule to Article 205 of the Constitution, 
relating to High Court Judges and contended that indeed in terms 
of paragraph-2 every judge of the High Court is entitled for 
pensionary benefits, but subject to determination of such right by 
the President, which is the basic requirement and only thereafter 
the question of quantum of pensionary benefits could be 
considered/decided by the President for determination. After 
reading paragraph-2 and 3 of the Fifth Schedule to Article 205 of 
the Constitution word-by-word, he contended that the word 
“determination by the President” has two facets; one about the right 
of every judge; and, the other about the quantum of pensionary 
benefits of every judge. When in this background, the Fifth 
Schedule relating to High Court Judges is read in line with the 
language of either High Court Judges Order, 1937 or President’s 
Order No.09/1970 or President’s Order No.03/1997, it clearly 
shows that determination made by the President regarding 
pensionary benefit of the honourable retired judges of the High 
Court, who have served as such for less than five years, is zero 
pension, for which no further clarification or illustration is needed 
in case President’s Order is read harmoniously with the Fifth 
Schedule. Making reference to the principle of rationality or 
proportionality in the matter of pensionary benefits, he further 
contended that this Court cannot sit over or regulate the powers of 
the President in this regard, therefore, no such observation or 
Const. Petition No.127 of 2012 
64 
directions can be issued to the President, who has already 
determined the right of the judges of the High Court, having 
rendered less than five years service as “Zero”. He also made 
reference to the judgment in the case of Sindh High Court Bar 
Association (supra) to show that the judgment under challenge is 
mainly based on the President’s Order No.08/2007 dated 
14.12.2007, which has been already declared ultra vires and void 
ab initio, and it also contain relevant observations striking down 
the opinion of the Attorney General for Pakistan in that case. He 
further made reference of Article 184(3), 187 and 188 of the 
Constitution in support of his arguments that suo moto 
proceedings in the present form are very much competent, 
particularly in the circumstances when question of public 
exchequer is involved and the fallout of judgment under challenge 
is huge burden over it, which has brought this case within the 
domain of public interest litigation. In the end, he referred the case 
of Hussain Badshah v. Akhtar Zaman (2006 SCMR 1163) to 
conclude his submissions that if the judgment under challenge is 
reviewed, its applicability shall be made prospectively so that the 
pensionary benefits already availed by the former/retired Judges of 
the High Court, having less than five years service to their credit, 
are not disturbed. He also made a statement before the Court that 
he will further provide written synopsis of his arguments to show 
number 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 the 
arguments of learned Attorney General for Pakistan, although by 
Const. Petition No.127 of 2012 
65 
that time, the learned Attorney General for Pakistan has not even 
made his arguments in the case. When confronted with this 
position, he submitted that he knows that what the learned 
Attorney General for Pakistan is going to argue in this case, 
therefore, without waiting for his submissions, he is making such 
statement before the Court. 
54. 
Mr. 
Muhammad 
Qasim 
Mirjat, 
learned 
Additional 
Advocate General Sindh argued that only confirmed/permanent 
judges of the High Court are entitled for pensionary benefits and 
not those who had performed only as additional judges of the High 
Court. He further argued that the scheme under the Constitution 
with reference to Article 205 of the Constitution, read with its Fifth 
Schedule and the President’s Order 9 of 1970 or 3 of 1997, is quite 
clear, therefore, he would not support the claim of the honourable 
retired judges of the High Court, who have rendered less than five 
years service as such and now claiming pensionary benefits on the 
basis of the judgment under challenge. 
55. 
Mr. Hanif Khatana, learned Additional Advocate General, 
Punjab conceded to the jurisdiction of this Court in entertaining 
and deciding the present petition on merits, however, making 
reference to the language of paragraph-2 of Fifth Schedule to 
Article 205 of the Constitution, he submitted that every judge of 
the High Court, irrespective of his length of service is entitled for 
pensionary benefits.  
56. 
Mr. Zaheer Bashir Ansari, ASC, who appeared in this 
case on behalf of his late brother Justice Tanvir Bashir Ansari, 
retired judge of the High Court, was unable to give exact date of his 
appointment and retirement, but pointed out that on his 
Const. Petition No.127 of 2012 
66 
retirement date i.e. 25.6.2005, late Justice Tanvir Bashir Ansari 
has served as a Judge of the High Court for a period of 04-years, 
01-month and few days. He further adopted the arguments 
advanced 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 a 
petition in the nature of quo warranto, one of the question involved 
was that whether a writ of such nature could be issued against a 
High Court Judge. In that context, it was observed that often terms 
"Judge" and "Court" are used interchangeably as synonymous yet 
this does not obliterate distinction between a Judge as an 
individual and Court as seat of justice as an institution. In the 
end, prayer for grant of writ of quo warranto against the judge was 
declined and the petitioner was, therefore, dismissed. He 
contended that these suo moto proceedings in order to examine the 
legality and propriety of the judgment under challenge on the 
touchstone of per incuriam, etc are very much maintainable, 
however, in the peculiar facts and circumstances, he supported the 
judgment under challenge as well as the claim of every retired 
judge of the High Court for pensionary benefits, irrespective of his 
actual length of service as such. 
58. 
Mr. Irfan Qadir, learned Attorney General for Pakistan, in 
his arguments boldly asserted that judges cannot be made judge of 
their own cause for the purpose of determining their pensionary 
benefits. Thus, neither he is supporting these suo moto 
proceedings, nor the judgment under challenge, as determination 
Const. Petition No.127 of 2012 
67 
of right to pension in terms of the clear language of paragraph-2 of 
the Fifth Schedule to Article 205 of the Constitution is exclusive 
domain of the President of Pakistan. He further contended that 
from the definition of word “Judge” given under Article 260 of the 
Constitution, even the additional judges of the High Court, if the 
President so determines, could be entitled for pensionary benefit 
irrespective of the bar under Article 207 of the Constitution. 
Expressing his view about some other legal aspects of the 
judgment under challenge, he firstly argued that even wrong law 
declared 
by 
this 
Court 
cannot 
be 
corrected 
under 
any 
constitutional jurisdiction vested with the Supreme Court, 
however, at a later stage, he conceded that Supreme Court has 
unfettered powers under the Constitutional mandate to ensure 
correct interpretation of law and its applicability to all the citizen of 
the Country and no palpable wrong pronouncement of law could 
hold the field once it has come to the notice of the Court and 
necessary proceedings have been initiated for this purpose. He 
further argued that judgment under challenge is not entirely 
dependent upon the discussion made in its paragraph-20, relating 
to President’s Order No.08/2007, which has been set at naught 
and declared to be void ab initio in the case of Sindh High Court 
Bar Association (supra). He also brought to our notice that as per 
his information, another President’s Order based on the summary 
of Ministry of Law for determining the right to pension of the 
honourable retired judges of the High Court, having rendered less 
than five years service, is in the pipeline. However, till the 
conclusion of these proceedings and announcement of our short 
order in Court on 11.4.2013, no such President’s Order has seen 
the light of the day. 
Const. Petition No.127 of 2012 
68 
59. 
For a short while, Justice Abdul Ghani Sheikh, with the 
permission of the Court, also came at the rostrum to make his 
submissions. He read before us paragraph-2 & 3 of the Fifth 
Schedule to Article 205 of the Constitution to advance his case for 
pensionary benefits irrespective of his length of service and in 
support of his submission, placed reliance upon the cases of State 
Bank of Pakistan  v. Mst. Mumtaz Sultana (2010 SCMR 421) and 
Pakistan through Secretary Ministry of Finance v. Muhammad 
Himayatullah Farukhi (PLD 1969 SC 407). In the case of State of 
Bank of Pakistan (supra), dealing with some dispute relating to 
Voluntary Golden Handshake Scheme floated by the State Bank 
of Pakistan through Circular No.9 of 1997, dated 23.10.1997, 
while outlining the distinction between a judgment in rem and 
judgment in personam as also highlighted in the case of Pir 
Bakhsh and others v. The Chairman, Allotment Committee and 
others (PLD 1987 SC 145), it was held that the benefit allowed to 
one group of employees cannot be denied to another group of 
employees in similar position, even if they were not party to the 
earlier proceedings, as the State Bank of Pakistan was bound by 
the earlier decision to redress their grievance accordingly. In the 
other case of Pakistan through Secretary Ministry of Finance 
(supra), in depth discussion as regards the Principle of locus 
poenitentiae (power of receding till a decisive step taken) was made 
and it was held that the authority that has power to make an order 
has also the power to undo it, but subject to the exception that 
where the order has taken legal effect, and in pursuance thereof 
certain rights have been created in favour of any individual, such 
order cannot be withdrawn or rescinded to the detriment of his 
rights. 
Const. Petition No.127 of 2012 
69 
60. 
It may be mentioned here that some other senior 
ASCs/ASCs and honourable retired judges, who appeared during 
the proceedings of this case on some dates, did not come forward 
to make their submissions, though before conclusion of the 
proceedings 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 at 
the rostrum to make his submissions. 
61. 
When we look at the detailed submissions of the learned 
senior ASCs, ASCs, the Additional Advocate Generals of four 
Provinces, the Attorney General for Pakistan, some of the retired 
judges of the High Court, who appeared in person and the two 
amici curiae, as noted above, we find that for proper adjudication of 
all these factual and legal controversies, framing of three moot 
points for consideration covering the gamut of these submissions 
will be useful, which are accordingly framed as under:- 
(a) 
Whether the present suo moto proceedings, emanating 
from the office note of the Registrar dated 21.11.2012, are 
not maintainable on the basis of various legal contentions 
raised before us qua the powers of this Court vested 
under Articles 184, 185, 187 and 188, in Chapter-1, Part-
VII of our Constitution? 
(b) 
What could be the correct interpretation of Article 205, its 
Fifth Schedule in the Constitution, read with applicable 
President’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 of 
the High Court on the basis of judgment under challenge 
could be retained by them, or they are liable to 
Const. Petition No.127 of 2012 
70 
return/restore/refund all such benefits to the public 
exchequer? 
62. 
As to the question of maintainability of this petition, from 
the arguments advanced by the learned ASCs etc, we find that the 
first objection as to its maintainability is raised in the context of 
jurisdiction and powers of the Registrar of this Court for 
submission of the note dated 21.11.2012, which formed basis for 
the subsequent order of the Honourable Chief Justice for fixation 
of this petition before the larger Bench. The other objections as to 
the maintainability are with reference to the powers of this Court 
under Articles 184(3), 187 and 188 of the Constitution qua 
applicability of the principles of “stare decisis”, “res judicata”, 
“locus poenitentiae” and “past and closed transaction”. In this 
regard, when we have confronted the learned ASCs with a simple 
but important question, that if for any reason the note of the 
Registrar dated 21.11.2012 is improper and its contents are 
discarded, but at the same time when the issue in relation to the 
illegality of a judgment, which has taken the form of a precedent 
laying down an incorrect law, and its colossal fallout on the public 
exchequer,  which has brought it within the domain of public 
interest litigation, has come to our notice in any form, whether for 
some technical reasons alone, the Court should still desist from 
exercising its jurisdiction vested under Articles 184(3), 187 and 
188 of the Constitution, the unanimous answer to this question 
was in the negative i.e. in exercise of powers under the 
constitutional provisions, this Court has unlimited jurisdiction to 
reopen, revisit or review, and for this purpose examine any 
judgment earlier pronounced by this Court to set the law correct, 
Const. Petition No.127 of 2012 
71 
to cure injustice, save it from becoming an abuse of the process of 
law and this judicial system. The Attorney General for Pakistan, 
during his arguments, at one stage stated that under no 
circumstances does this Court have jurisdiction to examine or review 
the judgment under challenge, but later on, he also conceded to this 
legal position. Although some of the learned ASCs still reiterated their 
arguments for pressing into service the principle of stare decisis, res 
judicata and “past and closed transaction” and cited some judgments 
in support thereof, but at the conclusion of the proceedings, none of 
them could dispute that the principle of stare decisis, res judicata, or 
past and closed transaction in their literal form are not applicable to 
the proceedings before the apex Court in a situation when the very 
judgment under challenge is found “per incuriam”.  
63. 
In order to exhibit some of the powers of this Court, which 
could be exercised to consider a question of public importance with 
reference to enforcement of any fundamental right; for doing 
complete justice in any case or matter pending before it, and powers 
of review available to the Supreme Court, it will be useful to 
reproduce hereunder Articles 184(3), 187 and 188 of the Constitution 
respectively and also to discuss few celebrated judgments, 
enunciating some broad principles of law in this regard. For this 
purpose, reference is made here to the judgments in the cases of 
Abdul Ghaffar- Abdul Rehman (supra), Sindh High Court Bar 
Association (supra) and Justice Khurshid Anwar Bhinder (supra). 
Article 184(3) of the Constitution. 
“184. Original jurisdiction of Supreme Court.-(1) The Supreme Court 
shall, to the exclusion of every other Court, have original jurisdiction in 
any dispute between any two or more Governments. 
Explanation.-In 
this 
clause, 
“Governments” 
means 
the 
Federal 
Government and the Provincial Governments. 
Const. Petition No.127 of 2012 
72 
(2)  
In the exercise of the jurisdiction conferred on it by clause (1), the 
Supreme Court shall pronounce declaratory judgments only. 
(3)  
Without prejudice to the provisions of Article 199, the Supreme 
Court shall, if it considers that a question of public importance with 
reference to the enforcement of any of the Fundamental Rights conferred 
by Chapter I of Part II is involved, have the power to make an order of the 
nature 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 have 
power to issue such directions, orders or decrees as may be 
necessary for doing complete justice in any case or matter 
pending before it, including an order for the purpose of securing 
the attendance of any person or the discovery or production of 
any document. 
(2) Any such direction, order or decree shall be enforceable 
throughout Pakistan and shall, where it is to be executed in a 
Province, or a territory or an area not forming part of a Province 
but within the jurisdiction of the High Court of the Province, be 
executed as if it had been issued by the High Court of that 
Province. 
(3) If a question arises as to which High Court shall give effect to 
a direction, order or decree of the Supreme Court, the decision of 
the 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 of 
any act of Majlis-e-Shoora (Parliament) and of any rules made by 
the Supreme Court, to review any judgment pronounced or any 
order 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 this 
Court subject to the provisions of any Act of the Parliament and 
any rules made by the Supreme Court to review any judgment 
pronounced or any order made by it. Whereas' Order XXVI, rule 1 
of the Rules lays down that subject to the law and practice of the 
Court, the Court may review its judgment, order of any civil 
proceeding, on ground similar to those mentioned in Order XLVII, 
rule 1 of C.P.C. and any criminal proceeding on the ground of an 
error apparent on the face of the record. 
  
 
It may be observed that Order XLVII, rule 1 of C.P.C. gives 
a right to a party to apply for review if he is aggrieved by the 
orders 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 and 
important matter or evidence which, after the exercise of due 
diligence, was not within his knowledge or could not be produced 
by him at the time when the decree was passed or order made, or 
on account of some mistake or error apparent on the face of the 
record, or for any other sufficient reason. 
  
15. We may now refer to the judgments relied upon by the 
learned counsel for the parties. Mr.S. Sharifuddin Pirzads has 
referred to the following cases:- 
  
(i) 
Lt.-Col. Nawabzada Muhammad Amir Khan v. The 
Controller of Estate Duty, Government of Pakistan, 
Karachi and others (PLD 1962 SC 335). 
(ii) 
Fida Hussain v. The Secretary, Kashmir Affairs and 
Northern Affairs 
Division, 
Islamabad 
and 
another (PLD 1995 SC 701), 
(iii) 
Suba through Legal Heirs v. Fatima Bibi through 
Legal Heirs and others (1996 SCMR 158);  
(iv) 
Mian Rafiq Saigol and another v. Bank of Credit 
and Commerce 
 
International (Overseas) Limited and another (PLD 
1997 SC 865). 
(v) 
Unreported order in Civil Review Petition No.l-K of 
1989 (Begum Asfar Saeed and others v. Ch.Abdul 
Aziz) rendered by this Court on 10-3-1991. 
  
 
In the above first case, Cornelius C.J. made the following 
observation as to the scope of review: 
"For the present purpose, the emphasis should, in my 
opinion, be laid upon the consideration that, for the doing 
of "complete justice", the Supreme Court is vested with full 
power, and I can see no reason why the exercise of that 
full power should be applicable only in respect of a matter 
coming up before the Supreme Court in the form of a 
decision by a High Court or some subordinate Court. I can 
see no reason why that purpose in its full scope, should 
not also be applicable for the purpose of reviewing a 
judgment delivered by the Supreme Court itself: provided 
that thereby found a necessity within the meaning of the 
expression "complete justice" to exercise that power. It 
must, of course, be borne in mind that by assumption, 
every judgment pronounced by the Court is a considered 
and solemn decision on all points arising out of the case, 
and further that every reason compels towards the grant 
of finality in favour of such judgments delivered by a 
Court which sits at the apex of the judicial system. Again, 
the expression "complete justice" is clearly not to be 
understood in any abstract or academic sense. So much is 
clear from the provision in Article 163(3) that a written 
order is to be necessary for the purpose of carrying out the 
intention to dispense "complete justice". There must be a 
substantial or material effect to be produced upon the 
result of the case if, in the interests of "complete justice" 
Const. Petition No.127 of 2012 
74 
the 
Supreme 
Court 
undertakes 
to 
exercise 
its 
extraordinary power of review of one of its own considered 
judgments. If there be found material irregularity, and yet 
there be no substantial injury consequent thereon, the 
exercise of the power of review to alter the judgment would 
not necessarily be required. The irregularity must be of 
such a nature as converts the process from being one in 
aid of justice to a process that brings about injustice. 
Where, however, there is found to be something directed 
by the judgment of which review is sought which is in 
conflict with the Constitution or with a law of Pakistan 
there it would be the duty of the Court unhesitatingly to 
amend the error. It is a duty which is enjoyed upon every 
Judge of the Court by the solemn oath which he takes 
when he enters upon his duties, viz., to "preserve, protect 
and defend the Constitution and law of Pakistan." 
  
 
In the above report, Kaikaus, J., who rendered his 
separate opinion made the following observations:- 
  
"to permit a review on the ground of incorrectness would 
amount to granting the Court the jurisdiction to hear 
appeals against its own judgments or perhaps a 
jurisdiction to one Bench of the Court to hear appeals 
against other benches; and that surely is not the scope of 
review jurisdiction. No mistake in a considered conclusion, 
whatever the extent of that mistake, can be a ground for 
the 
exercise 
of 
review 
jurisdiction. 
On 
a 
proper 
consideration it will be found that the principles 
underlying the limitations mentioned in Order XLVII, rule 
1, Civil Procedure Code, are implicit in the nature of 
review jurisdiction. While I would prefer not to accept 
those limitations as if they placed any technical 
obstruction in the exercise of the review jurisdiction of this 
Court I would accept that they embody the principles on 
which this Court would act in the exercise of such 
jurisdiction. It is not because a conclusion is wrong but 
because something obvious has been overlooked, some 
important aspect of the matter has not been considered, 
that a review petition will lie. It is a remedy to be used 
only in exceptional circumstances." 
  
 
In the second case this Court comprising the then learned 
Chief Justice and four companion Judges entertained a suo motu 
review 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 the 
judgment under review is that some of the other civil 
servants/employees placed in the same position as the 
petitioner was had been considered for promotion to BPS-
17 and in fact were promoted, whereas the petitioner was 
denied the above benefit which amounted to violation of 
inter alia Article 25 of the Constitution of the Islamic 
Republic of Pakistan, 1973. In this regard, reference may 
Const. Petition No.127 of 2012 
75 
be made to the case of I.A. Sharwani and others v. 
Government of Pakistan through Secretary, Finance 
Division, Islamabad and others 1991 SCMR 1041 
12 
………………………………………………………………… 
…………………………………………………………………….. 
  
 13    …………………………………………………….………….. 
               ……………………………………………………………….. 
  
14. The upshot of the above discussion is that the 
judgment under review is liable to be recalled as it 
proceeded on wrong premises. We would, therefore, allow 
the above Suo Motu Review Petition and recall the above 
judgment. In consequence thereof, petitioner's Civil Appeal 
No. 216 of 1991 is allowed and the judgment of the 
Tribunal is set aside and the respondents are directed to 
consider the petitioner's case for promotion to BPS-17." 
  
 
In the third case this Court, while accepting a review 
petition, made following observations:- 
  
"From the above discussed legal position, it emerges that a 
petition 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 be 
competent if something which is obvious in the judgment 
has either been overlooked and that if it would have been 
considered by the Court, the final result of the case would 
have been otherwise. No review petition, however, would 
lie on the ground of a wrong decision by the Court or that 
another view is possible on reconsideration." 
  
 
In the fourth case also the scope of review was succinctly 
discussed by this Court after referring the relevant case-law and 
in this regard the following observations were made:-- ' 
  
"From the preceding discussion it follows that review 
proceedings cannot partake re-hearing of a decided case. 
Therefore, if the Court has taken a conscious and 
deliberate decision on a point of law or fact while 
disposing of a petition or an appeal, review of such 
judgment or order cannot be obtained on the grounds that 
the Court took an erroneous view or that another view on 
reconsideration is possible. Review also cannot be allowed 
on the ground of discovery of some new material, if such 
material was available at the time of hearing of appeal or 
petition but not produced. A ground not urged or raised at 
the hearing of petition or appeal cannot be allowed to be 
raised in review proceedings. Only such errors in the 
judgment/order would justify review, which are self-
evident, found floating on the surface, are discoverable 
without much deliberations, and have a material bearing 
on the final result of the case." 
  
Const. Petition No.127 of 2012 
76 
 
In the last unreported order of this Court in the case of 
Begum Asfar Saeed and others v. Ch. Abdul Aziz, after referring a 
number of cases, the following conclusion was recorded as to the 
scope of a review:- 
  
"From an examination of the aforesaid precedents of this 
Court, it seems settled that overlooking some important 
aspect of the matter from consideration or an erroneous 
assumption of a material fact affecting the conclusion 
reached in the judgment are valid grounds on which the 
review of a judgment can be permitted. In view of what is 
stated it is not necessary to refer to the judgments cited by 
the respondent on the scope of review, because mostly the 
cases relate to reargument of an appeal in review 
jurisdiction which is not permissible, or to the raising of 
pleas which were not agitated at the hearing of the appeal 
or contained a reassertion of the law as laid down in the 
case of Muhammad Amir Khan v. Controller of Estate 
Duty (PLD 1962 SC 335) on which the respondent himself 
relied." 
  
16.     We may now refer to the following cases relied upon by Mr. 
Gulzarin Kiani, learned Advocate Supreme Court for the 
respondents: -- 
  
(i) 
Sajjan Singh and others v,. The State of Rajasthan 
and others (AIR 1965 SC 845); 
 (ii) 
The 
Keshav Mills 
Co. 
Ltd., 
Petlad 
v. 
The 
Commissioner of Income Tax, Bombay North, 
Ahmedabad (AIR 1965 SC 1636); 
 (iii) 
Pillani Investment Corporation Ltd. v. The Income-
tax Officer, A Ward, Calcutta and another (AIR 
1972 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 and 
others (AIR 1980  SC 2041); 
 (vii)  
A.R. Antulay, v. R.S. Nayak and another (AIR 1988 
SC 1531) 
  
 
In the above first case, the India Supreme Court while 
dilating upon Article 141 of the Indian Constitution relating to the 
power of review of the Supreme Court observed that the 
Constitution does not place any restriction on the power of the 
Supreme Court to review its earlier decision or even to depart 
from them and any matters relating to the decision of 
Constitutional points which have significant impact on the 
fundamental rights of citizens, it would be prepared to review its 
earlier decision in the interest of public good and that the 
doctrine stare decisis may not be strictly applied in this context. 
It was further observed that this doctrine will not be permitted to 
perpetuate erroneous decisions announced by the Supreme Court 
to the detriment of the general welfare. It was also observed that 
Const. Petition No.127 of 2012 
77 
the question, whether different view is to be taken, would depend 
on the nature of infirmity alleged in the earlier decision, its 
impact on public good and the validity and compelling character 
of situations urged in support of the contrary view. 
  
 
In the second case the Indian Supreme Court examined 
the scope as to when it should change its previous view in the 
following words:- 
  
"When it is urged that the view already taken by this 
Court should be reviewed and revised it may not 
necessarily be an adequate reason for such review and 
revision to hold that though the earlier view is a 
reasonably possible view, the alternative view which is 
pressed on the subsequent occasion is more reasonable. 
In reviewing and revising its earlier decision, this Court 
should ask itself whether in the interests of the public 
good or for any other valid and compulsive reasons, it is 
necessary that the earlier decision should be revised. 
When this Court decides questions of law, its decisions 
are, under Article 141, binding on all Courts within the 
territory of India, and so, it must be the constant 
endeavour and concern of this Court to introduce and 
maintain an element of certainty and continuity in the 
interpretation of law in the country. Frequent exercise by 
this Court of its power to review its earlier decisions on the 
ground that the view pressed before it later appears to the 
Court to be more reasonable, may incidentally tend to 
make law uncertain and introduce confusion which must 
be consistently avoided. That is not to say that if on a 
subsequent occasion, the Court is satisfied that its earlier 
decision was clearly erroneous, it should hesitate to 
correct the error; but before a previous decision is 
pronounced to be plainly erroneous, the Court must be 
satisfied with a fair amount of unanimity amongst its 
members that a revision of the said view is fully, justified. 
It is not possible or desirable, and in any case it would be 
inexpedient to lay down any principles which should 
govern the approach of the Court in dealing with the 
question of reviewing and revising its earlier decisions. It 
would 
always 
depend 
upon 
several 
relevant 
considerations:-- What is the nature of the infirmity or 
error on which a plea for a review and revision of the 
earlier view is based? On the earlier occasion, did some 
patent aspects of the question remain unnoticed, or was 
the attention of the Court not drawn to any relevant and 
material statutory provision, or was any previous decision 
of this Court bearing on the point not noticed? Is the 
Court hearing such plea fairly unanimous that there is 
such an error in the earlier view? What would be the 
impact of the error on the general administration of law or 
on public good? Has the earlier decision been followed on 
subsequent occasions either by this Court or by the High 
Courts? And, would the reversal of the earlier decision 
lead to public inconvenience, hardship or mischief? These 
Const. Petition No.127 of 2012 
78 
and other relevant considerations must be carefully borne 
in mind whenever this Court is called upon to exercise its 
jurisdiction to review and revise its earlier decisions. 
These considerations become still more significant when 
the earlier decision happens to be a unanimous decision 
of a Bench of five learned Judges of this Court." 
  
 
In the third case it was urged by the Indian Supreme 
Court that when it was not shown that the earlier judgment of the 
Supreme Court was erroneous or that any vital point was not 
considered, the Supreme Court would decline to review its earlier 
judgment. 
  
 
In the fourth case, Krishna Iyer, J. made the following 
weighty observations as to the scope of review:-- 
               
"Mr. Daphtary, learned counsel for the petitioners, has 
argued at length all the points which were urged at the 
earlier stage when we refused special leave thus making 
out that a review proceeding virtually amounts to a re-
hearing. May be we were not right in refusing special leave 
right in the first round but, once an order has been 
passed by this Court, a review thereof must be subject to 
the rules of the game and cannot be lightly entertained. A 
review of a judgment is a serious step and reluctant resort 
to it is proper only where a glaring omission or patent 
mistake or like grave error has crept in earlier by judicial 
fallibility. A mere repetition through different counsel of 
old and overruled arguments, a second trip over 
ineffectually covered ground or minor mistakes of 
inconsequential import are obviously insufficient. The very 
strict need for compliance with these factors is the 
rationale behind the insistence of counsel's certificate 
which should not be a routine affair or a habitual step. It 
is neither fairness to the Court which decided nor 
awareness of the precious public time lost what with a 
huge back-log of dockets waiting in the queue for disposal, 
for counsel to issue easy certificates for entertainment of 
review and fight over again the same battle which has 
been fought and lost. " 
  
 
In the fifth case, Krishna Iyer, J. of the Indian Supreme 
Court again enunciated the scope of a review by holding that a 
party is not entitled to seek a review of the judgment delivered by 
the Supreme Court merely for the purpose of re-hearing and a 
fresh decision of the case. It has been pointed out that the normal 
principle is that a judgment pronounced by the Court is final and 
departure 
from 
that 
principle 
is 
justified 
only 
when 
circumstances of a substantial and compelling character make it 
necessary to do. 
  
 
In the sixth case, Krishan Iyer, J. again reiterated that 
review is not a routine procedure but the material error should be 
manifest on the face of the earlier order resulting in miscarriage 
of justice and must be proved. 
Const. Petition No.127 of 2012 
79 
  
 
In the seventh case, the Indian Supreme Court highlighted 
that there is no distinction as to the power between Benches of 
the Supreme Court because of the number of Judges constituted 
the same, in the following words:- 
  
"It is time to sound a note of caution. The Supreme Court 
under its Rules of Business ordinarily sits in divisions and 
not as a whole one. Each Bench, whether small or large, 
exercises the powers vested in the Court and decisions 
rendered by he benches irrespective of their size are 
considered as decisions of the Court. The practice has 
developed that a larger Bench is entitled to overrule the 
decision of a smaller Bench notwithstanding the fact that 
each of the decisions is that of the Court. That principle, 
however, would not apply in the instant case and a Bench 
of Seven Judges is not entitled to reverse the decision of 
the Constitution Bench,. Overruling when made by a 
larger Bench of an earlier decision of a smaller one is 
intended to take away the precedent value of the decision 
without affecting the binding effect of the decision in the 
particular case. " 
  
17.  
From the above case-law, the following principles of law 
are deductible: 
  
(i) 
That every judgment pronounced by the Supreme 
Court is presumed to be a considered, solemn and 
final decision on all points arising out of the case; 
  
(ii) 
that if the Court has taken a conscious and 
deliberate decision on a point of fact or law, a 
review petition will not lie; 
  
(iii) 
that the fact the view canvassed in the review 
petition is more reasonable than the view found 
favour with the Court in the judgment/order of 
which review is sought, is not sufficient to sustain 
a review petition; 
  
(iv) 
that simpliciter the factum that a material 
irregularity was committed would not be sufficient 
to review a judgment/order but if the material 
irregularity was of such a nature, as to convert the 
process from being one in aid of justice to a 
process of injustice, a review petition would lie; 
  
(v) 
that simpliciter the fact that the conclusion 
recorded in a judgment/order is wrong does not 
warrant review of the same but if the conclusion is 
wrong because something obvious has been 
overlooked by the Court or it has failed to consider 
some important aspect of the matter, a review 
petition would lie; 
  
Const. Petition No.127 of 2012 
80 
(vi) 
that if the error in the judgment/order is so 
manifest and is floating on the surface, which is so 
material that had the same been noticed prior to 
the rendering of the judgment the conclusion 
would have been different, in such a case a review 
petition would lie; 
(vii) 
that the power of review cannot be invoked as a 
routine matter to rehear a case which has already 
been decided nor change of a counsel would 
warrant sustaining of a review petition, but the 
same can be pressed into service where a glaring 
omission or patent mistake has crept in earlier by 
judicial fallibility; 
(viii) 
that the Constitution does not place any restriction 
on the power of the Supreme Court to review its 
earlier decisions or even to depart from them nor 
the doctrine stare decisis will come in its way so 
long as review is warranted in view of the 
significant impact on the fundamental rights of 
citizens or in the interest of public good; 
  
(ix) 
that the Court is competent to review its 
judgment/order suo motu without any formal 
application; 
  
(x) 
that under the Supreme Court Rules, it sits in 
divisions and not as a whole. Each Bench whether 
small or large exercises the same power vested in 
the Supreme Court and decisions rendered by the 
Benches irrespective of their size are decisions of 
the 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 own 
jurisprudence and that of other jurisdictions the principle of trichotomy 
of powers and the power of judicial review vested in the superior Courts. 
Case-law from the Indian jurisdiction is particularly instructive on 
account of the common origins of constitutionalism springing from the 
Government 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 the 
interpreter of the Constitution and was assigned the delicate task of 
determining the extent of the power conferred on each branch of the 
government, its limits and whether any action of that branch 
transgressed such limits. It may be advantageous to reproduce below 
relevant excerpts from the judgment of the Indian Supreme Court 
delivered by Bhagwati J, in the said case: - 
"92………Parliament too, is a creature of the Constitution and it 
can only have such powers as are given to it under the 
Const. Petition No.127 of 2012 
81 
Constitution. It has no inherent power of amendment of the 
Constitution and being an authority created by the Constitution, 
it cannot have such inherent power, but the power of amendment 
is conferred upon it by the Constitution and it is a limited power 
which is so conferred. Parliament cannot in exercise of this power 
so amend the Constitution as to alter its basic structure or to 
change its identity. Now, if by constitutional amendment, 
Parliament were granted unlimited power of amendment, it would 
cease to be an authority under the Constitution, but would 
become supreme over it, because it would have power to alter the 
entire Constitution including its basic structure and even to put 
an end to it by totally changing its identity. It will therefore be 
seen that the limited amending power of Parliament is itself an 
essential feature of the Constitution, a part of its basic structure, 
for if the limited power of amendment were enlarged into an 
unlimited power, the entire character of the Constitution would 
be changed. It must follow as a necessary corollary that any 
amendment of the Constitution which seeks, directly or indirectly, 
to enlarge the amending power of Parliament by freeing it from 
the limitation of unamendability of the basic structure would be 
violative of the basic structure and hence outside the amendatory 
power of Parliament. 
93. It is a fundamental principle of our constitutional scheme, 
and I have pointed this out in the preceding paragraph, that every 
organ of the. State, every authority under the Constitution. 
Derives its power from the Constitution and has to act within the 
limits of such power. But then the question arises as to which 
authority must decide what are the limits on the power conferred 
upon each organ or instrumentality of the State and whether 
such limits are transgressed or exceeded. Now there are three 
main departments of the State amongst which the powers of 
Government are divided; the Executive, the Legislature and the 
Judiciary. Under our Constitution we have no rigid separation of 
powers as in the United States of America, but there is a broad 
demarcation, though, having regard to the complex nature of 
governmental 
functions, 
certain 
degree of 
overlapping 
is 
inevitable. The reason for this broad separation of powers is that 
"the concentration of powers in any one organ may" to quote the 
words of Chandrachud, J. (as he then was) in Smt. Indira 
Gandhi's case (AIR 1975 SC 2299) "by upsetting that fine balance 
between the three organs, destroy the fundamental premises of a 
democratic Government to which were pledged." Take for 
example, a case where the executive which is in charge of 
administration acts to the prejudice of a citizen and a question 
arises as to what are the powers of the executive and whether the 
executive has acted within the scope of its powers. Such a 
question obviously cannot be left to the executive to decide and 
for two very good reasons. First, the decision of the question 
would depend upon the interpretation of the Constitution and the 
laws and this would pre-eminently be a matter, fit to be decided 
by the judiciary,. because it is the judiciary which alone would be 
possessed 
of 
expertise 
in 
this 
field 
and 
secondly, 
the 
constitutional and legal protection afforded to the citizen would 
become illusory if it were left to the executive to determine the 
legality of its own action. So also if the legislature makes a law 
and a dispute arises whether in making the law the legislature 
has acted outside the area of its legislative competence or the law 
is violative of the fundamental rights or of any other provisions of 
the 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 these 
disputes and this independent machinery is the judiciary which is 
vested with the power of judicial review to determine the legality 
of executive action and the validity of legislation passed by the 
legislature. It is the solemn duty of the judiciary under the 
Constitution to keep the different organs of the State such as the 
executive and the legislature within the limits of the power 
conferred upon them by the Constitution. This power of judicial 
Const. Petition No.127 of 2012 
82 
review is conferred on the judiciary by Articles 32 and 226 of the 
Constitution. Speaking about draft Article 25, corresponding to 
present Article 32 of the Constitution, Dr. Ambedkar, the 
principal architect of our Constitution, said in the Constituent 
Assembly on 9th December, 1948: 
"If I was asked to name any particular article in this Constitution 
as the most important - an article without which this 
Constitution would be a nullity - I could not refer to any other 
article except this one. It is the very soul of the Constitution and 
the very heart of it and I am glad that the House has realized its 
importance". (CAD debates, Vol. VII, p, 953) It is a cardinal 
principle of our Constitution that no one howsoever highly placed 
and no authority however lofty can claim to be the sole judge of 
its power under the Constitution or whether its action is within 
the confines of such power laid down by the Constitution. The 
judiciary is the interpreter of the Constitution and to the judiciary 
is assigned the delicate task to determine what is the power 
conferred on each branch of Government, whether it is limited, 
and if so, what are the limits and whether any action of that 
branch transgresses such limits. It is for the judiciary to uphold 
the constitutional values and to enforce the constitutional 
limitations. That is the essence of the rule of law, which inter alia 
requires that "the exercise of powers by the Government whether 
it be the legislature or the executive or any other authority, be 
conditioned by the Constitution and the law". The power of 
judicial review is an integral part of our constitutional system and 
without it, there will be no Government of laws and the rule of 
law would become a teasing illusion and a promise of unreality. I 
am of the view that if there is one feature of our Constitution 
which, more than any other, is basic and fundamental to the 
maintenance of democracy and the rule of law, it is the power of 
judicial review and it is unquestionably, to my mind, part of the 
basic structure of the Constitution. Of course, when I say this I 
should not be taken to suggest that however effective alternative 
institutional mechanisms or arrangements for judicial review 
cannot be made by Parliament. But what I wish to emphasise is 
that judicial review is a vital principle of our Constitution and it 
cannot be abrogated without affecting the basic structure of the 
Constitution. If by a Constitutional amendment, the power of 
judicial review is taken away and it is provided that the validity of 
any law made by the Legislature shall not be liable to be called in 
question on any ground, even if it is outside the legislative 
competence of the legislature or is violative of any fundamental 
rights, it would be nothing short of sub-version of the 
Constitution, for it would make a mockery of the distribution of 
legislative powers between the Union and the States and render 
the fundamental rights meaningless and futile. So also if a 
constitutional amendment is made which has the effect of taking 
away the power of judicial review and providing that no 
amendment made in the Constitution shall be liable to be 
questioned on any ground, even if such amendment is violative of 
the basic structure and, therefore, outside the amendatory power 
of Parliament, it would be making Parliament sole judge of the 
constitutional validity of what it has done and that would in effect 
and substance, nullify the limitation on the amending power of 
Parliament and affect the basic structure of the Constitution. The 
conclusion must therefore inevitably follow that clause (4) of 
Article 368 is unconstitutional and void as damaging the basic 
structure of the Constitution. 
94. That takes us to clause (5) of Article 368. This clause opens 
with the words "For the removal of doubts" and proceeds to 
declare that there shall be no limitation whatever on the 
amending power of Parliament under Article 368. It is difficult to 
appreciate the meaning of the opening words "For the removal of 
doubts" because the majority decision in Kesavananda Bharati's 
case (AIR 1973 SC 1461) clearly laid down and left no doubt that 
Const. Petition No.127 of 2012 
83 
the basic structure of the Constitution was outside the 
competence of the mandatory power of Parliament and in Smt. 
Indira Gandhi's .case (supra) all the Judges unanimously 
accepted theory of the basic structure as a theory by which the 
validity of the amendment impugned before them, namely, Article 
329A(4) was to be judged. Therefore, after the decisions in 
Kesavananda Bharati's case and Smt. Indira Gandhi's case, there 
was no doubt at all that the amendatory power of Parliament was 
limited and it was not competent to Parliament to alter the basic 
structure of the Constitution and clause (5) could not remove the 
doubt which did not exist. What A clause (5) really sought to do 
was to remove the limitation on the amending power of 
Parliament and convert it from a limited power into an unlimited 
one." 
In A.K. Kaul v. Union of India (AIR 1995 SC 1403), justiciability of an 
action of an authority functioning under the Indian Constitution was 
discussed as under: - 
"The extent of those limitations on the powers has to be 
determined on an interpretation of the relevant provisions of the 
Constitution. Since the task of interpreting the provisions of the 
Constitution is entrusted to the Judiciary, it is vested with the 
power to test the validity of an action of every authority 
functioning under the Constitution on the touchstone of the 
constitution in order to ensure that the authority exercising the 
power conferred by the Constitution does not transgress the 
limitations placed by the Constitutions on exercise of that power. 
This power of judicial review is, therefore, implicit in a written 
Constitution and unless expressly excluded by a provision of the 
Constitution, the power of judicial review is available in respect of 
exercise of powers under any of the provisions of the 
Constitution. Justiciability relates to a particular field falling 
within the purview of the power of judicial review. On account of 
want of judicially manageable standards, there, may be matters 
which are not susceptible to the judicial process. Such matters 
are regarded as non-justiciable. In other words, during the course 
of exercise of the power of judicial review it may be found that 
there are certain aspects of the exercise of that power which are 
not susceptible to judicial process on account of want of judicially 
manageable standards and are, therefore, not justiciable." 
168. In the case of Raja Ram Pal v. Speaker, Lok Sabha [(2007) 3 SCC 
184] while dilating upon the role of the Supreme Court of India, it was 
held that it was the solemn duty of the Court to protect the fundamental 
rights guaranteed by the Constitution zealously and vigilantly. Relevant 
portion from the judgment is reproduced below: -  
"651. We have a written Constitution which confers powers of 
judicial review on this Court and on all High Courts. In exercising 
power and discharging duty assigned by the Constitution, this 
Court has to play the role of a 'sentinel on the qui vive' and it is 
the solemn duty of this Court to protect the fundamental rights 
guaranteed by Part III of the Constitution zealously and vigilantly. 
652. It may be stated that initially it was contended by the 
respondents-that this Court has no power to consider a complaint 
against any action taken by Parliament and no such complaint 
can ever be entertained by the Court. Mr. Gopal Subramaniam, 
appearing for the Attorney General, however, at a later stage 
conceded (and I may say, rightly) the jurisdiction of this Court to 
consider such complaint, but submitted that the Court must 
always keep in mind the fact that the power has been exercised 
by a coordinate organ of the State which has the jurisdiction to 
Const. Petition No.127 of 2012 
84 
regulate its own proceedings within the four walls of the House. 
Unless, therefore, this Court is convinced that the action of the 
House is unconstitutional or wholly unlawful, it may not exercise 
its extraordinary jurisdiction by re-appreciating the evidence and 
material before Parliament and substitute its own conclusions for 
the conclusions arrived at by the House. 
653. In my opinion, the submission is well-founded. This Court 
cannot be oblivious or unmindful of the fact that the Legislature 
is one of three organs of the State and is exercising powers under 
the same Constitution under which this Court is exercising the 
power of judicial review. It is, therefore, the duty of this Court to 
ensure that there is no abuse or misuse of power by the 
Legislature without overlooking another equally important 
consideration that the Court is not a superior organ or an 
appellate forum over the other constitutional functionary. This 
Court, therefore, should exercise its power of judicial review with 
utmost 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 been 
observed that there is no doubt that Parliament/State Legislature 
has power to punish for contempt, which has been reiterated in 
other cases also, for instance, in State of Karnataka v. Union of 
India, (1977) 4 SCC 608, and in P. V. Narasimha Rao v. State, 
(1998) 4 SCC 626. But what has been held is that such decision 
of Parliament/State, Legislature is not 'final and 'conclusive'. This 
Court in all earlier cases held that in view of power of judicial 
review under Articles 32 and 226 of the Constitution, the 
Supreme Court and High Courts have jurisdiction to decide 
legality or otherwise of the action taken by State- authorities and 
that power cannot be taken away from judiciary. There lies the 
distinction 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 to 
challenge in any court of law. This, in my opinion, is based on the 
doctrine that there cannot be two parallel courts, i.e. Crown's 
Court and also a Court of Parliament ('the High Court of 
Parliament') exercising judicial power in respect of one and the 
same jurisdiction. India is a democratic and republican. State 
having a written Constitution which is supreme and no organ of 
the State (Legislature, Executive or Judiciary) can claim 
sovereignty or supremacy over the other. Under the said 
Constitution, power of judicial review has been conferred on 
higher judiciary (Supreme Court and High Courts)." 
In the case of I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), while 
referring to L. Chandra Kumar v. Union of India [(1997) 3 SCC 261] and 
S.R. Bommai v. Union of India [(1994) 3 SCC 1], it was held that the 
judicial review was a basic feature of the Constitution and that the power 
of judicial review was a constituent power which could not be abrogated 
by judicial process of interpretation. It was further held that it was a 
cardinal principle of the Constitution that no one could claim to be the 
sole judge of the 'power given under the Constitution and that its actions 
were 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 of 
judicial review is a cardinal principle of the Constitution. The Judges, to 
keep the power of judicial review strictly judicial, in its exercise, do take 
Const. Petition No.127 of 2012 
85 
care not to intrude upon the' domain of the other branches of the 
Government. It is the duty of the judiciary to determine the legality of 
executive action and the validity of legislation passed by the Legislature. 
At this stage, reference may also be made to our own jurisdiction where a 
robust 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 the 
Executive. It aims at an independent Judiciary which is an 
important organ of the State within the Constitutional sphere. 
The Constitution provides for progressive separation of the 
Judiciary and had fixed a time limit for such separation. It 
expired in the year 1987 and from then onwards, irrespective of 
the fact whether steps have been taken or not, judiciary stands 
separated and does not and should not seek aid of executive 
authorities for its separation. Separation of judiciary is the 
cornerstone of independence of judiciary and unless judiciary is 
independent, the fundamental right of access to justice cannot be 
guaranteed. One of the modes for blocking the road of free access 
to justice is to appoint or' hand over the adjudication of rights 
and trial of offence in the hands of the Executive Officers. This is 
merely a semblance of establishing Courts which are authorised 
to decide cases and adjudicate the rights, but in fact such Courts 
which are manned and run by executive authorities without being 
under the control and supervision of the judiciary can hardly 
meet the demands of Constitution. Considering from this point of 
view we find that the impugned Ordinance II of 1968 from the 
cognizance of the case till the revision is disposed of, the entire 
machinery is in the hands of the executive from Naib-Tehsildar to 
the official of the Government in the Ministry: Such a procedure 
can hardly be conducive to the administration of justice and 
development of the area nor will it achieve the desired result of 
bringing law and order, peace and tranquility or economic 
prosperity 
and 
well-being. 
The 
Constitution 
envisages 
independent Judiciary separate from the Executive. Thus any 
Tribunal created under the control and superintendence of the 
executive for adjudication of civil or criminal cases will be in 
complete 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 and 
preserved as that of the superior judiciary. The lower judiciary is 
more dependent and prone to financial dependence and 
harassment at the hands of the executive. In practice and effect 
the separation of judiciary is the main problem of the lower 
judiciary which under several enactments and rules is practically, 
under the control and supervision of the executive. Articles 175 
and 203 lay down that the judiciary including lower judiciary 
shall be separated from the executive and 'High Court shall 
supervise and control all Courts subordinate to it'. Such control 
and supervision can be achieved only when the judiciary is 
administratively and financially separate from the executive. The 
next step should be taken to devise proper scheme and frame 
rules dealing with financial problems within the framework of the 
Constitution. So long financial independence is not achieved, it 
will 
be 
difficult 
to 
improve 
the 
working 
conditions, 
accommodation, building and expansion to meet the growing 
needs 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 
86 
has Federal system of Government which is based on trichotomy 
of power, it may be observed that each organ, of the State is 
required to function/operate within the bounds specified in the 
Constitution though one can say that the Judiciary is the weakest 
limb as it does not have the resources or power which the 
Legislature or the Executive enjoy but it has been assigned very 
important and delicate role to play, namely, to ensure that none 
of the organs or the Government functionaries acts in violation of 
any provision of the Constitution or of any other law and because 
of the above nature of the work entrusted to the Judiciary, it was 
envisaged in the Constitution that the Judiciary shall be 
independent. I may reiterate that the independence of Judiciary is 
inextricably linked and connected with the Constitutional process 
of appointment of Judges of the superior Judiciary. The relevant 
Constitutional provisions are to be construed in a manner which 
would ensure the independence of Judiciary. At this juncture, it 
may be stated that a written Constitution, is an 'organic 
document designed and intended to cater the need for all times to 
come. It is like a living tree, it grows and blossoms with the 
passage of time in order to keep pace with the growth of the 
country and its people; Thus, the approach, while interpreting a 
Constitutional provision should be dynamic, progressive and 
oriented 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, so 
that 'it may be able to meet the requirement of ever changing 
society. The general words cannot be construed in isolation but 
the same are to be construed in the context in which, they are 
employed. In other words, their colour and contents are derived 
from their context. 
"24. The above principles will have to be kept in view while 
construing the, provisions of the Constitution relating to the 
appointments/transfers of Judges of the superior Judiciary. 
"The Constitution contemplates trichotomy of power inter se the 
pillars of the State, namely, Legislature, Executive and the 
Judiciary, each of the organs of the State has to function within 
the limits provided in Constitution. The Constitutional provisions 
relating to the appointments transfers of Judges of the superior 
Courts, therefore, need to be examined in light of the Islamic 
concept of justice. Islam had always attached unparalleled 
importance to the concept of justice." 
Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 
1445) 
"(v) That the hallmark of our Constitution is that it envisages 
separation of the Judiciary from the Executive (which is founded 
on the Islamic Judicial System) in order to ensure independence 
of Judiciary and. therefore, any Court or Tribunal which is not 
subject to judicial review and administrative control of the High 
Court and/or the Supreme Court does not fit in within the 
judicial framework of the Constitution; 
"(vi) That the right of 'access to justice to all' is a fundamental 
right, which right cannot be exercised in the absence of an 
independent Judiciary 'providing impartial, fair ' and just 
adjudicatory 
framework 
i.e. 
judicial 
hierarchy. 
The 
Courts/Tribunals which are manned and run by Executive 
Authorities without being under the control and supervision of 
the High Court in terms of Article 203 of the Constitution can 
hardly meet the mandatory requirement of the Constitution; 
"(vii) That the independence of judiciary is inextricably linked and 
connected with the process of appointment of Judges and the 
security of their tenure and other terms and conditions." 
Const. Petition No.127 of 2012 
87 
Liaquat 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 for 
offences not connected with the Armed Forces, is constitutionally 
valid? As stated above, our Constitution is based on the theory of 
trichotomy of power which makes the three limbs of the State, the 
Legislature, the Executive and the Judiciary, independent of each 
other in their respective spheres. Chapter I of Part VII of the 
Constitution deals with the judicature. The judicature according 
to Article 175(1) of the Constitution, consists of the Supreme 
Court, a High Court for each Province and such other Courts as 
may be established by law. The Courts created under Article 
175(1) (ibid) exercise such jurisdiction which is conferred on them 
either by the Constitution or by or under any law as provided in 
Article 175(2) ibid. The judicature stands separated from the 
executive as provided in Article 175(3) of the Constitution. 
Creation of Courts outside the control and supervision of 
Supreme Court or the High Courts, therefore, not only militates 
against the independence of Judiciary but it also negates the 
principle of trichotomy of power which is the basic feature of the 
Constitution." 
Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 
869) 
"It is also mentioned in the Objectives Resolution that principles 
of democracy, freedom, equality, tolerance and social justice as 
enunciated by Islam shall be enabled to order their lives in 
accordance with teachings and requirements of Islam as set out 
in the Holy Qur'an and Sunnah and independence of judiciary 
shall be fully secured. Objectives Resolution was even retained in 
the Interim Constitution of 1972 as Preamble. 
"Independence of Judiciary is a basic principle of the 
Constitutional 
system 
of 
governance 
in 
Pakistan. 
The 
Constitution of Pakistan contains specific and categorical 
provisions for the independence of Judiciary. The Preamble and 
Article 2A state that "the independence of Judiciary shall be fully 
secured"; and with a view to achieve .this objective. Article 175 
provides that "the Judiciary shall be separated progressively from 
the executive". 
"In 
a 
system 
of 
constitutional 
governance, 
guaranteeing 
Fundamental Rights, and based on principle of trichotomy of 
powers, such as ours, the Judiciary plays a crucial role of 
interpreting and applying the law and adjudicating upon disputes 
arising among governments or between State and citizens or 
citizens' 
inter 
se. 
The 
Judiciary 
is entrusted 
with 
the 
responsibility for enforcement of Fundamental Rights. This calls 
for an independent and vigilant system of judicial administration 
so that all acts and actions leading to infringement of 
Fundamental Rights are nullified and the rule of law upheld in 
the society. 
The Constitution makes it the exclusive power/responsibility of 
the Judiciary to ensure the sustenance of system of "separation of 
powers" based on checks and balances. This is a legal obligation 
assigned to the Judiciary. It is called upon to enforce the 
Constitution and safeguard the Fundamental Rights and freedom 
of individuals, To do so, the Judiciary has to be properly 
organized and effective and efficient enough to quickly address 
and resolve public claims and grievances; and also has to be 
strong and independent enough to dispense justice fairly and 
impartially. It is such an efficient and independent Judiciary 
which can foster an appropriate legal and judicial environment 
Const. Petition No.127 of 2012 
88 
where there is peace and security in the society, ,safety of life, 
protection of property and guarantee of essential human rights 
and fundamental freedoms for all individuals and groups, 
irrespective of any distinction or discrimination on the basis of 
cast; creed, colour, culture, gender or place of origin, etc. It is 
indeed such a legal and judicial environment, which is conducive 
to economic growth and social development." 
170. The exercise of suo motu powers has been dwelt at length by the 
superior Courts of Pakistan in a large number of cases. Reference may 
usefully 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 its 
nature, the procedural and other elements thereof are likely in 
due course, to come under discussion. 
(i) True, a telegram, it has never been earlier made the basis by 
the Supreme Court of Pakistan for action, as in this case; but, 
there is ample support in the Constitution for the same. Under 
Article 184(3) "Without prejudice to the provisions of Article 199, 
the Supreme Court shall, if it considers that a question of public 
importance with reference to the enforcement of any of the 
Fundamental Rights conferred by Chapter I of Part II is involved, 
have the power to make an order of the nature mentioned in the 
said Article." The questions of procedural nature relating to the 
entertainment of proceedings and/or cognizance of a case under 
this provision, have been dealt with in the case of Miss Benazir 
Bhutto (PLD 1988 SC 416). The acceptance of a telegram in this 
case is covered by the said authority as also by the due extension 
of the principles laid therein. Such extension/s would depend 
upon the fact and circumstances of each case and nature of 
public interest involved and importance thereof. The element of 
"public importance" in this case now stands demonstrated by the 
resume (a part only) of the proceedings, given earlier. 
It needs to be mentioned that in our Supreme Court, though 
letters and telegrams are sent to individual Judges, but it is not 
considered as an appropriate and proper method of initiating 
proceedings. Some times it leads to embarrassment. Accordingly 
such an information has to go to the Hon'ble Chief Justice for 
initiating proceedings. In this case the telegram was addressed 
directly to him and he marked it to me. 
As to what other form/s of taking cognizance of a matter under 
Article 184 (3) are possible, will depend upon the nature and 
importance thereof. 
(ii) The "nature" of the orders which can be passed in such cases 
is also indicated in Article 184 (3); that is: such as can be passed 
under Article 199. Even if for the time being it be assumed that 
the "nature" of the order is confined only to the Orders under 
sub-clause (c) of Article 199(1) and not to the other Orders under 
"Article 199", it would be seen that any conceivable just and 
proper order can be passed in a case like the present one. The 
principle of extension involved in the relevant phrase used in Art. 
199(1)(c): "an order giving such directions to any person or 
authority -------- as may be appropriate for the enforcement of the 
Fundamental 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 
89 
the Constitutional set up of Pakistan. For instance, "according to 
Article 187 (1) this Court some times has to satisfy the dictates of 
"Complete Justice". What goes with it, is the subject or ample 
authority as well as of future application in given cases. When 
this power is exercised the Court will have the necessary 
additional power to "issue such directions, orders or decrees as 
may 
be 
necessary." 
Besides 
the 
binding 
effect 
of 
the 
judgment/order of this Court on all other "Courts" when it 
"decides" a question of law or it is based upon or enunciates a 
principle 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 Supreme 
Court". 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 of 
enforcement of Fundamental Rights, the Supreme Court has 
jurisdiction, power and competence to pass all proper/ necessary 
orders as the facts justify. 
(iii) The question as to whether this is a case of enforcement of 
Fundamental Right/s has not been raised. Everybody accepted 
that it is so. The provisions of Article 9 relating to security of 
person; Article 11 in so far as it relates to forced labour, traffic in 
human beings and child labour; Article 14 relating to dignity of 
man; Article 15 ensuring freedom of movement; Article 19 relating 
to freedom of trade, business or profession; and Article 25 
relating td equality, particularly in the protection of law and bar 
against discrimination on the basis of sex, as also the safeguards 
for women and children, amongst others, are applicable to the 
various aspects of the matter. However, it is a different matter 
that some Fundamental Rights are more directly attracted than 
the others and some elements involved in any one of them are 
relevant while the others are meant for other situations. In view of 
lack of contest on this issue it is not necessary to go into a 
detailed discussion in this behalf. It is, however, remarked that 
for purposes of convenience of all concerned, it might be 
necessary 
to 
define 
the 
expression 
"forced 
labour 
with 
illustrations of its different forms"; in such a manner, so as to 
minimize any confusion about its real purport as also the 
resultant unproductive litigation. For the same purpose the other 
important elements in these Fundamental Rights may be 
collected together and put in a self-contained Code. It might cover 
all aspects of human dignity, deprivations and misery, including 
those rights in this behalf which are ensured, in addition, as 
basic human rights in Islam. This Court has in the Shariat 
jurisdiction dealt with some of them. There is no bar in the 
Constitution to the inclusion in such law of these rights, in 
addition to the Fundamental Rights contained in Chapter I Part II 
thereof. This comprehensive law should deal with the compulsory 
education of the classes concerned for making them aware of 
their rights; the detection of the infringement thereof as the duty 
of the State; and providing remedial mechanism also at the 
instance of the State whenever the will to assert or exercise them 
is lacking on the part of a citizen. These aspects of the 
enforcement 
of 
Fundamental 
Rights 
guaranteed 
by 
the 
Constitution and other basic human rights ensured by Islam can, 
by law be made also into an independent inalienable right, with 
self-operating mechanism for enforcement as well. 
Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 
Supreme Court 473 at page 805) 
"First, we may understand the nature of Article 184(3). This 
provision confers power on the Supreme Court to consider 
questions of public importance which are referable to the 
enforcement of any Fundamental Rights guaranteed by the 
Constitution and enumerated in Chapter 1 of Part II. This power 
is without prejudice to the provisions of Article 199 which confer 
similar power with certain restrictions on the High Court. The 
Const. Petition No.127 of 2012 
90 
power conferred depends upon two questions; one, that the case 
sought to be heard involves question of public importance and 
two, the question of public importance relates to the enforcement 
of Fundamental Rights. It is not every question of public 
importance which can be entertained by this Court, but such 
question should relate to the enforcement of Fundamental Rights. 
This provision confers a further safety and security to the 
Fundamental 
Rights 
conferred 
and 
guaranteed 
by 
the 
Constitution. This shows the importance which Fundamental 
Rights have in the scheme of the Constitution. They cannot be 
curtailed or abridged and any provision of law or action taken 
which violates Fundamental Rights conferred by the Constitution 
shall be void. The nature of jurisdiction and the relief which can 
be granted under this Article is much wider than Article 199. It 
confers a power to make an order of the nature mentioned in 
Article 199. The word 'nature' is not restrictive in meaning but 
extends the jurisdiction to pass an order which may not be 
strictly in conformity with Article 199 but it may have the same 
colour and the same scheme without any restrictions imposed 
under it. Article 184 is an effective weapon provided to secure and 
guarantee the Fundamental Rights. It can be exercised where the 
Fundamental Right exists and a breach has been committed or is 
threatened. The attributes of Article 199 of being an aggrieved 
person or of having an alternate remedy and depending upon the 
facts and circumstances even laches cannot restrain the power or 
non-suit a petitioner from filing a petition under Article 184 and 
seeking relief under it. The relief being in the nature mentioned in 
Article 199 can be modified and also consequential reliefs can be 
granted 
which 
may 
ensure 
effective 
protection 
and 
implementation of the Fundamental Rights. Even disputed 
questions of facts which do not require voluminous evidence can 
be looked into where Fundamental Right has been breached. 
However, in case where intricate disputed questions of facts 
involving voluminous evidence are involved the Court will desist 
from entering into such controversies. Primarily, the questions 
involved are decided on admitted or prima facie established facts 
which can be determined by filing affidavits evidence in support of 
allegations can be taken orally in very exceptional cases where 
the breach is of a very serious nature affecting large section of the 
country 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 objection 
that the facts of the case do not justify intervention under Article 
184 of the Constitution. The main thrust was that the grid station 
and the transmission line are being constructed after a proper 
study of the problem taking into consideration the risk factors, 
the economic factors and also necessity and requirement in a 
particular area. It is after due- consideration that planning is 
made and is being executed according to rules. After taking such 
steps possibility of health hazards is ruled out and there is no 
question of affecting property and health of a number of citizens 
nor any Fundamental Right is violated which may warrant 
interference under Article 184. So far the first part of the 
contention regarding health hazards is concerned, sufficient 
discussion has been made in the earlier part of the judgment and 
need not be repeated. So far the Fundamental Rights are 
concerned, one has not to go too far to find the reply. 
Article 9 of the Constitution provides that no person shall be 
deprived 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 does 
not mean nor can it be restricted only to the vegetative or animal 
life or mere existence from conception to death. Life includes all 
such amenities and facilities which a person born in a free 
country, 
is entitled to enjoy 
with 
dignity, 
legally 
and. 
Const. Petition No.127 of 2012 
91 
constitutionally. For the purposes of present controversy suffice 
to say that a person is entitled to protection of law from being 
exposed to hazards of electromagnetic fields or any other such 
hazards which may be due to installation and construction of any 
grid 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 or 
commission of a third person in the neighbourhood or at a far off 
place, he is entitled to seek an injunction and also claim 
damages, but the Constitutional rights are higher than the legal 
rights conferred by law, be it municipal law or the common law. 
Such a danger as depicted, the possibility of which cannot be 
excluded, is bound to affect a large number of people who may 
suffer from it unknowingly because of lack of awareness, 
information and education and also because such sufferance is 
silent and fatal and most of the people who would be residing 
near, under or at a dangerous distance of the grid station or such 
installation do not know that they are facing any risk or are likely 
to suffer by such risk. Therefore, Article 184 can be invoked 
because a large number of citizens throughout the country 
cannot make such representation and may not like to make it due 
to ignorance, poverty and disability. Only some conscientious 
citizens aware of their rights and the possibility of danger come 
forward and this has happened so in the present case. 
13. According to Oxford dictionary, 'life' meant state of all 
functional activity and continual change peculiar to organised 
matter and specially to the portion of it constituting an animal or 
plant 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 natural 
functions and motions are performed, or in which its organs are 
capable of performing their functions. The interval between birth 
and death, the sum of the forces by which death is resisted, "life" 
protected by the Federal Constitution includes all personal rights 
and 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 and 
wide meaning to the word 'life' which includes all such rights 
which are necessary and essential for leading a free, proper, 
comfortable and clean life. The requirement of acquiring 
knowledge to establish home, the freedoms as contemplated by 
the Constitution, the personal rights and their enjoyment are 
nothing but part of life. A person is entitled to enjoy his personal 
rights and to be protected from encroachments on such personal 
rights, freedom and liberties. Any action taken which may create 
hazards of life will be encroaching upon the personal rights of a 
citizen to enjoy the life according to law. In the present case this 
is the complaint the petitioners have made. In our view the word 
`life' constitutionally is so wide that the danger and encroachment 
complained of would impinge Fundamental Right of a citizen. In 
this view of the matter the petition is maintainable. 
Dr. Pervez Hasan, learned counsel has referred to various 
judgments of the Indian Supreme Court in which the term 'life' 
has been explained with reference to public interest litigation. In 
Kharak Singh v. State of UP (AIR 1963 SC 129) for interpreting 
the 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's 
animal existence but a right to the possession of each of his 
organs --his arms and legs etc." In Francis Corgi v. Union 
Territory of Delhi (AIR 1981 SC 746) Bhagvati, J. observed that 
Const. Petition No.127 of 2012 
92 
right to life includes right to live with human dignity and all that 
goes along with it, namely, the bare necessaries of 'life such as 
adequate nutrition, clothing and shelter and facilities for reading 
and writing in diverse form". Same view has been expressed in 
Olga Tellis and others v. Bombay Municipal Corporation (AIR 
1986 SC 180) and State of Himachal Pradesh and another v. 
Umed Ram Sharma and others (AIR 1986 SC 847). In the first 
case right to life under the Constitution was held to mean right to 
livelihood. In the latter case the definition has been extended to 
include the "quality of life' and not mere physical existence. It was 
observed that "for residents of hilly areas, access to road is access 
to life itself. Thus, apart from the wide meaning given by US 
Courts, the Indian Supreme Court seems to give a wider meaning 
which includes the quality of life, adequate nutrition, clothing and 
shelter and cannot be restricted merely to physical existence. The 
word 'life' in the Constitution has not been used in a limited 
manner. A. wide meaning should be given to enable a man not 
only to sustain life but to enjoy it. Under our Constitution, Article 
14 provides that the dignity of man and subject to law the privacy 
of home shall be inviolable. The fundamental right to preserve 
and protect the dignity of man under Article 14 is unparalleled 
and could be found only in few Constitutions of the world. The 
Constitution guarantees dignity of man and also right to 'life' 
under Article 9 and if both are read together, question will arise 
whether a person can be said to have dignity of man if his right to 
life is below bare necessity like without proper food, clothing, 
shelter, education, health care, clean atmosphere and unpolluted 
environment. Such questions will arise for consideration which 
can be dilated upon in more detail in a proper proceeding 
involving such specific questions. 
Dr. Pervaz Hasan has also referred to several judgments of the 
Indian Supreme Court in which issues relating to environment 
and ecological balance were raised and relief was granted as the 
industrial activity causing pollution had degraded the quality of 
life. In Rural Litigation and Entitlement Kendra and others v. 
State of UP and others (AIR 1985 SC 652) mining operation 
carried out through blasting was stopped and directions were 
issued to regulate it. The same case came up for further 
consideration and concern was shown for the preservation and 
protection of environment and ecology. However, considering the 
defence need and for earning foreign exchange some queries were 
allowed to be operated in a limited manner subject to strict 
control and regulations. These judgments are reported in AIR 
1987 SC 359 and 2426 and AIR 1988 SC 2187 and AIR 1989 Sc 
594. In Shri Sachidanand Pandey and another v. The State of 
West Bengal and others (AIR 1987 SC 1109) part of land of 
zoological garden was given to Taj Group of Hotels to build a five-
star hotel. This transaction was challenged in the High Court 
without success. The appeal was dismissed. Taking note of the 
fact that society's interaction with nature is so extensive that 
"environmental question has assumed proportion affecting all 
humanity", it was observed that: -- 
"Obviously, 
if 
the 
Government 
is 
alive 
to 
the 
various 
considerations requiring thought and deliberation and has arrived 
at a conscious decision after taking them into account, it may not 
be for this Court to interfere in the absence of mala fides. On the 
other hand, if relevant considerations are not borne in mind and 
irrelevant, considerations influence the decision, the Court may 
interfere in order to prevent a likelihood of prejudice to the 
public." 
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 petition 
filed by a citizen taking note of the fact that the municipal sewage 
and industrial effluents from tanneries were being thrown in 
River Ganges whereby it was completely polluted, the tanneries 
Const. Petition No.127 of 2012 
93 
were closed down. These judgments go a long way to show that in 
cases where life of citizens is degraded, the quality of life, is 
adversely affected and health hazards are created affecting a large 
number of people, the Court in exercise of its jurisdiction under 
Article 184(3) of the Constitution may grant relief to the "extent of 
stopping the functioning of factories which create pollution and 
environmental 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 to 
first dispose of the preliminary objection raised by the learned 
Standing Counsel. The learned counsel for the respondents 
contended that the Court has no jurisdiction to grant the relief 
under Article 184(3) of the Constitution and the present case is 
not covered by the said provision. The scope and object of Article 
184(3) has been comprehensively discussed in several judgments 
of this Court including Ms. Benazir Bhutto's case (PLD 1988 SC 
416) and Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 
473). It is now well-settled that if there is violation of 
Fundamental Rights of a class of persons who collectively suffer 
due to such breach and there does not seem to be any possible 
relief being granted from any quarter due to their inability to seek 
or obtain relief, they are entitled to file petition under Article 
184(3). The dispute should not be mere an individual grievance, 
but a collective grievance which raises questions of general public 
importance. 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 move 
the Supreme Court nor does it say by what proceedings the 
Supreme Court may be so moved or whether it is confined to the 
enforcement of the Fundamental Rights of an individual which 
are infracted or extends to the enforcement of the rights of a 
group 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 in 
the context of constitutionalism which makes a greater demand 
on judicial functions. Therefore, while construing Article 184(3), 
the 
interpretative 
approach 
should 
not 
be 
ceremonious 
observance of the rules or usages of interpretation, but regard 
should be had to the object and the purpose for which this Article 
is enacted, that is, this interpretative approach must receive 
inspiration from the triad of provisions which saturate and 
invigorate the entire Constitution, namely the Objectives 
Resolution (Article 2A), the Fundamental Rights and the directive 
principles of State Policy so as to achieve democracy, tolerance, 
equality and social justice according to Islam". While further 
dilating upon the provisions of the Constitution, particularly 
Articles 3, 37 and 38 of the Constitution, which enshrine socio-
economic principles, it was observed that "these provisions 
become in an indirect sense enforceable by law and " thus, bring 
about a phenomenal change in the idea of co-relation of 
Fundamental Rights and directive principles of State Policy". In 
this background it was observed as follows: -- 
"The liberties, in this context, if purposefully defined will serve to 
guarantee genuine freedom; freedom not only from arbitrary 
restraint of authority, but also freedom from want, from poverty 
and destitution and from ignorance and illiteracy. That this was 
the purport of the role of the rule of law which was affirmed at 
Lagos 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 
94 
individual's freedom and rights. What is the use of freedom of 
speech to under-nourished people or of the freedom of press to an 
illiterate population? The rule of law must make for the 
establishing of social, economic and cultural conditions which 
promote men to live in dignity and to live with aspirations'. " 
"The Court will be in a position, if the procedure is flexible, to 
extend the benefits of socio-economic change through this 
medium of interpretation to all sections of the citizens. 
"This approach is in tune with the era of progress and is meant to 
establish that the Constitution is not merely an imprisonment of 
the past, but is also alive to the unfolding of the future. It would 
thus, be futile to insist on ceremonious interpretative approach to 
Constitutional interpretations as hitherto undertaken which only 
served to limit the controversies between the State and the 
individual without extending the benefits of the liberties and the 
Principles of Policy to all the segments of the population. 
"It is thus clear that Article 9 of the Constitution which 
guarantees life and liberty according to law is not to be construed 
in a restricted and pedantic manner. Life has a larger concept 
which includes the right of enjoyment of life, maintaining 
adequate level of living for full enjoyment of freedom and rights. 
In this background the petitioners' claim to be provided 
accommodation during tenure of service, which is necessary for 
maintaining adequate level of living, in our opinion, is covered by 
Article 9. It is true that the terms and conditions of service 
perhaps do not require the respondents to provide residential 
accommodation to the petitioners, but if other Government 
servants similarly placed are being provided accommodation there 
is no reason to deprive the petitioners from such relief. In this 
view of the matter petition under Article 184(3) is competent." 
General Secretary v. Director, Industries (1994 SCMR 2061 at 
page 2071) 
"It is well-settled that in human rights cases/public interest 
litigation under Article 184(3), the procedural trappings and 
restrictions, precondition of being an aggrieved person and other 
similar technical objections cannot bar the jurisdiction of the 
Court. This Court has vast power under Article 184(3) to 
investigate into questions of fact as well independently by 
recording evidence, 
appointing commission 
or 
any other 
reasonable and legal manner to ascertain the correct position. 
Article 184(3) provides that this Court has the power to make 
order of the nature mentioned in Article 199. This is a guideline 
for exercise of jurisdiction under this provision without 
restrictions and restraints imposed on the High Court. The fact 
that the order or direction should he in the nature mentioned in 
Article 199, enlarges the scope of granting relief which may not be 
exactly as provided under Article 199, but may be similar to it or 
in the same nature and the relief so granted by this Court can be 
moulded 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 a 
direct access to the highest judicial forum in the country for the 
enforcement of Fundamental Rights. It caters for an expeditious 
and inexpensive remedy for the protection of the Fundamental 
Rights from Legislative and Executive interference. It gives the 
Court very wide discretion in the matter of providing an 
appropriate order or direction including declaratory order to suit 
the exigencies of particular situation. There can be no dour that 
declaration of Fundamental Rights is meaningless unless there is 
an 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 Constitution 
makers provided a long list of Fundamental Rights and the 
machinery for their enforcement. That machinery is the Superior 
Courts, namely, the High Courts so far as the Provincial territory 
is concerned, and the Supreme Court at the apex having 
jurisdiction over the entire length and breadth of Pakistan. 
Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823 at page 
1005) 
"It will not be out of context at this stage to observe that our 
country has a Federal System of Government which is based on 
trichotomy of power, each organ of the State is required to 
function/operate within the bounds specified in the Constitution. 
Though one can say that Judiciary is the weakest limb as it does 
not have the resources or powers which the Legislature or the 
Executive enjoy, but it has been assigned very important and 
delicate role to play, namely, to ensure that none of the organs or 
the Government functionaries acts in violation of any provision of 
the Constitution or any other law and because of the above 
nature of work entrusted to the Judiciary, the framers of the 
Constitution envisaged an independent Judiciary. However, I may 
add that the Judiciary is also constitutionally obliged to act 
within the limits of its jurisdiction as delineated by the 
Constitution inter alia in Article 175 thereof. Clause (2) of the 
above Article provides that no Court shall have any jurisdiction 
save as is or may be conferred on it by the Constitution or by 
under any law. In this view of the matter, the relevant 
Constitutional provisions .are to be construed in a manner that 
neither the Judiciary nor the Legislature transgresses its own 
limit and an equilibrium is to be maintained inter se between the 
three organs of the State. However, at the same time, it should 
not be overlooked that our Constitution has enshrined and 
emphasised independence of Judiciary and, therefore, the 
relevant provisions are to be construed in a manner which would 
ensure the independence of Judiciary. We have a written 
Constitution, which is an organic document designed and 
intended to cater to the needs for all times to come. It is like a 
living tree; it grows and blossoms with the passage of time in 
order to keep pace with the growth of the country and its people. 
Thus the approach while interpreting a Constitutional provision 
should be dynamic, progressive and oriented with the desire to 
meet 
the 
situation, 
which 
has 
arisen 
effectively. 
The 
interpretation cannot be narrow and pedantic but the Courts' 
efforts should be to construe the same broadly, so that it may be 
able to meet the requirements of an ever changing society. The 
general words cannot be construed in isolation but the same are 
to be construed in the context in which they are employed. In 
other words, their colour and contents are derived from the 
context." 
Watan Party v. Federation of Pakistan (PLD 2006 SC 697 at page 
717) 
"19. Syed Sharif-ud-Din Pirzada learned counsel for the 
Privatization Commission contended that to invoke jurisdiction of 
this Court under Article 184(3) of the Constitution, two conditions 
are required to be fulfilled namely infringement of the 
Fundamental Rights and absence of alternate remedy. In the case 
in hand no fundamental right has been infringed and under the 
scheme of Privatization Commission Ordinance No. LII, 2000 
(hereinafter referred to as "Ordinance"), two alternate remedies 
are available in terms of section 27 and section 28 of the 
Ordinance. According to learned counsel the judgment relied 
Const. Petition No.127 of 2012 
96 
upon by the petitioner in S.P. Gupta's case ibid, in the 
circumstances of the instant case is not applicable because 
thereafter the Indian Supreme Court in the case of BALCO 
Employees Union (Regd.) v. Union of India (AIR 2002 SC 350) has 
explained the scope of the public interest litigation. 
"20. Learned Attorney General, however, at the outset contended 
that after hearing the case at length by this Larger Bench for a 
long period, it will not be fair on his part to say that, "no point of 
public importance is involved in this case", therefore, he will not 
be questioning locus standi of the petitioners particularly in view 
of the judgments in the cases of Multiline Associates and Ardeshir 
Cowasjee ibid. 
"21. This Court in the referred cases and the Indian Supreme 
Court in the case of S.P. Gupta ibid have laid down a rule namely 
that any member of the public having sufficient interest can 
maintain an action for judicial redress of public injury arising 
from breach of the public duty or from violation of some provision 
of the Constitution or the law and for enforcement of such public 
duty and observance of such Constitutional provision. 
"In the case of Benazir Bhutto ibid, it was held that only when the 
element of public importance is involved, the Supreme Court can 
exercise its power to issue the writ while sub Article 1(c) of Article 
199 of the Constitution has a wider scope as there is no such 
limitation therein. 
"In Al-Jehad Trust ibid, it has been held that, "question of locus 
standi is relevant in a High Court but not in the Supreme Court 
when the jurisdiction is invoked under Article 184(3) of the 
Constitution. 
"In Malik Asad Ali ibid it was observed that under Article 184(3) of 
the Constitution, this Court is entitled to take cognizance of any 
matter which involves a question of public importance with 
reference to the enforcement of any of the fundamental rights 
conferred 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 of 
the locus standi in the case of pro bono publico (public' interest 
litigation is not so rigid) has extended scope. This principle has 
been 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, the 
courts normally will not interfere in pure' policy matters (unless 
the policy itself is shown to be against Constitution and the law) 
nor impose its own opinion in the matter. However, action taken 
can always be examined on the well established principles of 
judicial review." 
171. It is clear from the above survey of the case law that it is a 
fundamental principle of our jurisprudence that Courts must always 
endeavour to exercise their jurisdiction so that the rights of the people 
are guarded against arbitrary violations by the executive. This expansion 
of jurisdiction is for securing and safeguarding the rights of the people 
against the violations of the law by the executive and not for personal 
aggrandizement of the courts and Judges. It is to this end that the power 
of judicial review was being exercised by the judiciary before 3rd 
Const. Petition No.127 of 2012 
97 
November, 2007. Indeed the power of judicial review was, and would 
continue to be, exercised with strict adherence governing such exercise of 
power, remaining within the sphere allotted to the judiciary by the 
Constitution.  
172. Though the exercise of suo motu powers and alleged consequential 
erosion of trichotomy of powers enshrined in the Constitution was made 
a ground for imposing the unconstitutional and illegal Proclamation of 
Emergency, which was upheld in Tikka Iqbal Muhammad Khan's case, 
not a single case taken up suo motu was referred to, or discussed in the 
detailed 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 functioning 
of the other branches of the government. In any event, it was open to the 
Federation in all such cases to have availed the remedy provided under 
the Constitution and the law against the judgments of the Supreme 
Court. But, no such step was ever taken in any case whatsoever. 
Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka Iqbal 
Muhammad Khan's case that the suo motu actions were destructive of 
the constitutional principle of trichotomy of power, but he himself 
continued to take similar actions from time to time, which fact was 
established 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 of 
Mr. Wasim Sajjad, learned Senior Advocate Supreme Court 
that in view of the provisions as enumerated in Article 188 of 
the Constitution and Order XXVI of the Supreme Court Rules 
these C.M.As. are maintainable and the applicants cannot be 
knocked out on sheer technicalities which has always been 
considered undesirable. Article 188 of the Constitution is 
reproduced herein below for ready reference:-- 
 "188. Review of judgments or orders by the Supreme 
Court.--The Supreme Court shall have power, subject to 
the provisions of any Act of (Majlis-e-Shoora (Parliament)] 
and of any rules made by the Supreme Court, to review 
any judgment pronounced or any order made by it". 
25. A bare perusal would reveal that it has been couched in a 
very simple and plain language hardly necessitating any 
scholarly interpretation. It, inter alia, provides that the 
Supreme Court has power to review its judgment or order 
subject to the provisions of any Act of Parliament and any rule 
made by the Supreme Court itself. (The contention whether 
Supreme Court Rules, 1980 are subservient to the Constitution 
have been discussed in  later part of this judgment) It is to be 
noted that no Act of Parliament whatsoever has been 
promulgated and thus it can reasonably be inferred that 
legislature does not want to restrict or impose any condition on 
the powers conferred upon this Court under Article 188 of the 
Constitution. In fact the words "subject to the provisions of any 
Act of (Majlis-e-Shoora/Parliament) and of any rules made by 
the Supreme Court" are indicative of the fact that indirectly the 
powers so conferred have been enhanced and there was 
absolutely no intention for curtailment of such powers 
Const. Petition No.127 of 2012 
98 
conferred 
upon 
this 
Court 
under 
Article 
188 
of 
the 
Constitution. The point under discussion has been examined 
by this Court in case titled Evacuee Trust Property Board v. 
Hameed Elahi (PLD 1981 SC 108) with the following 
observations:- 
"6. Nothing in these Rules shall be deemed to limit or 
otherwise affect the inherent powers of the Court to make 
such orders as may be necessary for the ends of justice 
or to prevent abuse of the process of the Court. Now, as 
we observed, "a litigant should not suffer on account of 
the mistakes or errors of the Court, and the corollary of 
this principle is that the Court should have the inherent 
power to correct its errors. The said rule only clarifies in 
terms that this Court has the inherent power to make 
such orders as may be necessary for the ends of justice 
or to prevent abuse of the process of the Court." There is 
no ambiguity about these words, and if the respondent's 
plea be true, he has brought his case within the meaning 
of the said rule. 
Additionally, the said rule was not framed for first time 
by this Court. It is almost verbatim reproduction of 
section 151 of the Civil Procedure Code and of section 
561-A of the Criminal Procedure Code, and these two 
sections (which in turn are in pari materia with each 
other) have been part of our procedural laws for 
generations, so that there is no ambiguity about of our 
procedural laws for generations, so that there is no 
ambiguity 
about 
them, 
because 
they 
have 
been 
repeatedly construed by the superior Courts. Thus, for 
example, taking first, section 151 of the Civil Procedure 
Code, the Indian Supreme Court held in Keshardeo 
Chamaria v. Radha Kissen Chamaria and others (AIR 
1953 SC 23) that a Court could in the exercise of its 
powers under section 151 re-call an order passed by it 
without notice to the parties concerned. Next, as to 
section 561-A of the Criminal Procedure Code this Court 
held in Gulzar Hassan Shah v. Ghulam Murtaza and 4 
others (PLD 1970 SC 335) that a Court was competent 
under section 561-A to re-call an order passed by it 
without notice to the parties concerned. However, as this 
judgment was pronounced long after the rules of this 
Court had been framed in 1956, the case-law on section 
561-A before 1950 would be more relevant. We say 1950 
and not 1956, because the said rule was originally 
enacted as rule 6 of Order LIII of the Federal Court Rules 
of 1950. And on the repeal of those rules of 1956, the 
same provision was reenacted in the present rules as the 
said rule." 
26. We are conscious of the fact the principles of C.P.C. also 
need to be examined and thus the provisions as enumerated in 
Order XLVII, Rule 1 of C.P.C. would require consideration qua 
its application which is reproduced herein below for ready 
reference:-- 
 
"1. Application for review of judgment.--(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 
Const. Petition No.127 of 2012 
99 
Causes, 
and who, from the discovery of new and important 
matter or evidence which, after the exercise of due 
diligence, was not within his knowledge or could not be 
produced by him at the time when the decree was 
passed or order made, or on account of some mistake or 
error apparent on the face of the record, or for any other 
sufficient reason, desires to obtain a review of the 
decree passed or order made against him, may apply for 
a review of judgment to the Court which passed the 
decree or made the order. 
(2) A party who is not appealing from a decree or order 
may apply for a review of judgment notwithstanding the 
pendency of an appeal by some other party except 
where the ground of such appeal is common to the 
applicant and the appellant, or when, being respondent, 
he can present to the Appellate Court the case on which 
he applies for the review." 
27. A bare perusal would reveal that the salient features of 
Order XLVII, C.P.C. are as under :-- 
(i)  
discovery of new and important matter or 
evidence 
which 
after 
the 
exercise 
of 
due 
diligence, was not within his knowledge or could 
not be produced by the petitioner at the time 
when the decree was passed or order made; or 
(ii)  
on account of some mistake or error apparent on 
the face of the record; or 
  
(iii)  
for any other sufficient reason. [2003 CLC 1355) 
28. We have examined the salient features and grounds as 
enumerated in Order XLVII, Rule 1. C.P.C. and we are of the 
view in so far as these C.M.As. are concerned that neither there 
is discovery of new important fact nor some mistake or error 
has been pointed out and besides that no sufficient reasoning 
has been advanced on the basis whereof the principle as 
enunciated in Order XLVII, Rule 1, C.P.C. can be made 
applicable. It may not be out of place to mention here that 
"sufficient cause" is not susceptible of an exact definition and 
no hard and fast rule can be laid down to cover all possible 
cases. Each case must be judged upon its merits and its 
peculiar 
circumstances. 
The 
words 
"sufficient 
cause" 
mentioned in O. XLVII, R.1 of the Code do not mean any and 
every cause but it means any reason sufficient on ground at 
least analogous to those stated in the rule. The view that the 
"sufficient grounds" need not necessarily be construed ejusdem 
generis with the words preceding cannot be accepted as laying 
down the correct law." Suruj Mian v. Asst. Manager, Govt.  
Acquired Estate (PLD 1960 Dacca 1045). None of the grounds 
urged 
by 
the 
petitioners 
attracted 
the 
provisions 
as 
enumerated in Order XLVII, C.P.C. and thus C.M.As cannot be 
declared competent. A similar proposition was examined in 
Yusuf Ali v. State (PLD 1971 SC 508) with the following 
observations:-- 
"The right of review granted by Article 62 of the 
Constitution of 1962 is subject not only to the provisions 
of any Act of the Central Legislature but also to the 
provisions of any rules made by the Supreme Court and 
the Rules of the Court specifically provide by Order XXVI 
that "subject to the law and practice of the Court, the 
Court may review its judgment or order in a civil 
Const. Petition No.127 of 2012 
100 
proceeding on grounds similar to those mentioned in 
Order XLVII, rule 1 of the Code and in a criminal 
proceeding on the ground of an error apparent on the face 
of the record". Where none of the grounds urged by the 
petitioner come within the ambit of this rule no valid 
ground could be said to have been made out for the 
review of the judgment." (Emphasis provided) 
29. It may be mentioned that the words "any other sufficient 
reasons" used in Order XLVII, Rule (1)(c), C.P.C. means a 
reason sufficient on grounds at least analogous to those 
mentioned in a categoric manner in clauses (a),. (b), and (c) of 
Rule 1 of Order XLVII, C.P.C. "A review, as has been pointed 
out by this Court in the case of Lt. Col. Nawabzada Mohammad 
Amir Khan v. The Controller of Estate Duty Government of 
Pakistan, Karachi and another (PLD 1962 SC 335) is by its very 
nature not an appeal or a rehearing merely on the ground that 
one party or another conceives himself to be dissatisfied with 
the decision of this Court. It can only be granted for some 
sufficient cause akin to those mentioned in Order XLVII, rule 1 
of the Code of Civil  Procedure the provisions whereof 
incorporate the principles upon which a review can be 
granted." In this regard we are fortified by the dictum laid 
down in the following authorities: 
(i)  
Chhaju v. Neki (AIR 1922 PC 112), 
(ii)  
Iftikhar Hussain Shah v. Azad Govt. of The State 
of 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 subject 
to certain legal exceptions pursuant to the provisions as 
enumerated in Order XLVII, Rule 1, C.P.C., scope whereof can 
neither be enlarged nor it can be farfetched in such a manner 
as argued by the learned Advocate Supreme Courts for the 
petitioners in view of the language as employed in Order XLVII, 
Rule 1, C.P.C. its application would be only up to that limited 
extent and it cannot be unlimited. As mentioned above, the 
powers of review are not wide but definite and limited in 
nature. "It has to be confined to the four corners of the relevant 
rules or the phrase or for any other sufficient reason even the 
review jurisdiction as visualized must be traced to Order XLVII 
which contains the prescribed conditions and limitations in 
terms of the requirement of the section and more so power to 
review is not an inherent power. On a proper consideration it 
will be found that the principles underlying the limitations 
mentioned in Order XLVII, rule 1, Civil Procedure Code, are 
implicit in the nature of review jurisdiction and cannot be 
equated to that of a technical obstruction." In this regard the 
case 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, Hajee 
Suleman v. Custodian Evacuee Property (AIR 1955 
Madhya Bharat 108, Rukan Din and others v. Hafiz-ud-
Din and another (PLD 1962 Lah. 161), Mohd. Amir 
Khan v. Controller of Estate Duty PLD (1962 SC 335) 
Abdul Jabbar v. Collector of Central Excise and Land 
Customs Review Application No.15 of 1959 (Quetta) 
unreported considered. 
31. Mr. Justice Pir Hamid (as he then was) while discussing 
the provisions as enumerated in Order XLVII; Rule 1; C.P.C. 
has opined that "I for my part would be inclined to hold that a 
review is by its very nature not an appeal or a rehearing merely 
Const. Petition No.127 of 2012 
101 
on the ground that one party or another conceives himself to 
be dissatisfied with the decision of this Court, but that it 
should only be granted for some sufficient cause akin to those 
mentioned in Order XLVII, rule 1 of the Code of Civil 
Procedure, the provisions whereof incorporate the principles 
upon which a review was usually granted by Courts of law in 
England. The indulgence by way review may no doubt be 
granted to prevent remediable injustice being done by a court 
of last resort as where by some inadvertence an important 
statutory provision has escape notice which, if it had been 
noticed, might materially have affected the judgment of the 
Court but in no case should a rehearing be allowed upon 
merits." (Emphasis provided). (Muhammad Amir Khan v. 
Controller of Estate Duty PLD 1962 SC 335, Young v. Bristol 
Aeroplane 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) has 
also examined the provisions as enumerated in section 114, 
C.P.C. and Order XLVII, Rule 1, C.P.C. in the light of dictum 
laid down in H. M. Saya & Co. Karachi v. Wazir Ali Industries 
Ltd. Karachi and another (PLD 1969 SC 65) as under:-- 
"2. I called upon Mr. K. H. Khurshid, learned counsel for 
the petitioners to first convince me as to how this petition 
was competent when the petitioners were not a party to 
the writ proceedings. Learned counsel submitted that as 
the petitioners had been adversely affected by the order 
of this Court dated the 5th of December 1973, they are, 
therefore, aggrieved persons and hence have a locus 
standi to file this petition in the present form. Learned 
counsel relied on PLD 1971 SC 130, in order to prove that 
the petitioners were aggrieved persons but in my view 
this authority would not be of much help to him because 
in this case the question examined was as to who would 
be the person aggrieved within the ambit of Article 98 of 
the late Constitution of Islamic Republic of Pakistan 
whereas in the instant case the petitioners have to bring 
their 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 argued 
that 
the 
words 
"any 
person 
considering 
himself 
aggrieved" were wide enough to include even those 
persons who initially were not a party to the proceedings 
but at a later stage were affected by an order adverse to 
their interest. My attention was invited to Order XLVII, 
rule 1, C.P.C. and it was submitted that even in this 
provision 
the 
above mentioned 
words 
have 
been 
repeated, and the learned counsel, therefore, emphasized 
that these words would cover the case of even a 
stranger, the only essential requisite being that he must 
consider himself to be an aggrieved person, the test for 
which, according to the learned counsel would be 
subjective. 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 following 
observations: 
There can be no dispute that the only party which was 
adversely affected by the order of ad interim injunction 
was respondent No.1. We are satisfied that Saya & Co., 
deliberately omitted to make them parties with the 
intention of avoiding a contest. They knew fully well that 
the relief sought were really directed against Wazir Ali 
Industries Limited, and their bankers. A stranger to a 
suit or a proceeding is not prohibited by the Code of Civil 
Procedure from filing an appeal from an order passed 
therein. It is true that there is no express provision 
Const. Petition No.127 of 2012 
102 
permitting such party to prefer an appeal against such an 
order. This omission, however, cannot be understood to 
amount to prohibition. The Court ought not to act on the 
principle that every procedure is to be taken as 
prohibited unless it is expressly provided for. To give 
such a meaning to the omission would result in grave 
injustice. The facts of this case are clear example in 
point. The Court should proceed on the principle that 
every procedure which furthers administration of justice 
is permissible even if there is no express provision 
permitting the same. Section 96 of the Civil Procedure 
Code deals with appeals from decrees and section 104 
deals with appeals from orders. These provisions do not 
in terms say who is entitled to prefer an appeal. The 
Code, however, lays down that it is the decree or the 
order that has to be appealed against. If the decree or 
order appealed from adversely affects a person he should 
be permitted to challenge the same in appeal even if he 
was not made a party to the original suit for proceeding." 
and it was argued that the principle laid down in this 
case was fully applicable to the present petition and 
hence not only that the petition was competent but also 
that the order dated the 5th of December 1973, of this 
Court deserves to be reviewed. 
3. I have very carefully gone through this decision and 
find that the law laid down by the Supreme Court is only 
with regard to the appellate proceedings, whereas the 
scope of review is much different and the review 
jurisdiction is substantially and materially different to 
the appellate jurisdiction because it can be only utilized 
on the specific grounds mentioned in Order XLVII, rule 1, 
C.P.C. (Emphasis provided). In this connection it would be 
worthwhile 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 matter 
or evidence which, after the exercise of due diligence, 
was not within his knowledge or could not be produced 
by him at the time when the decree was passed or order 
made, on account of some mistake or error apparent on 
the face of the record, or for any other sufficient reason, 
desires to obtain a review of the decree passed or order 
made against him may apply for a review of judgment to 
the 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 order 
made". These words leave no room for doubt that the 
remedy of review could be availed of only by a person 
who initially was a party to the proceedings in which 
either a decree had been passed or an order had been 
made against him, otherwise the very essence of the 
grounds on which a review would be competent, would 
be rendered ineffective. It is, therefore, obvious that a 
stranger to the proceedings would not be permitted to 
avail of the grounds on which a review petition would be 
Const. Petition No.127 of 2012 
103 
competent. I, therefore, do not agree with the contention 
of the learned counsel that a wider interpretation of the 
words "any person considering himself aggrieved" would 
be the only proper and reasonable interpretation. On the 
other hand, I find that these words would have to be 
read and interpreted in the light of the main rule and 
when so done in my view their operation would be 
restricted and would cover the case of only those persons 
who initially were party to the proceedings." (Emphasis 
provided). (Qaim Hussain v. Anjuman Islamia PLD 1974 
Lah. 346). 
64. 
From the above discussion it will be seen that depending 
upon the peculiar facts and circumstances of each case, which 
enables the Court to form its opinion, all the above discussed 
jurisdictions conferred to the apex Court under the scheme of the 
Constitution are closely interlinked, rather, overlapping in some 
areas, therefore, without entering into the intricacies of such 
technicalities, this Court is competent to pass any order to foster 
the cause of justice; eliminating the chances of perpetuating 
illegality and to save an aggrieved party from being rendered 
remedy less.  If any further case law is needed to fortify this view, 
reference can also be made to number of other cases referred by 
the learned ASC’s in their respective arguments and discussed in 
the earlier part of this judgment as well as the cases of Syed 
Wajihul Hassan Zaidi v. Government of the Punjab and others 
(PLD 2004 SC 801) and Mrs. Shahida Zahir Abbasi v. President of 
Pakistan (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 judgment 
rendered by a Full Bench of this Court and the scope of review is 
very restricted within the parameters laid down by this Court in 
Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 690), 
Arif Shah v.; Abdul Hakeem Qureshi (PLD 1991 SC 905) and 
Abdul Ghaffar Abdul Rehman v. Asghar Ali (PLD 1998 SC 363). 
We are of the considered view that even if the view taken by this 
Court in the decision of the appeal be erroneous, it does not 
warrant revisiting by this Bench in the exercise of review 
jurisdiction, which can only be exercised when an error or 
Const. Petition No.127 of 2012 
104 
mistake is manifestly shown to float on the face of record, which 
is patent and if allowed to remain intact would perpetuate 
illegality and gross injustice. Basic object behind the conferment 
of power of judicial review on superior Courts essentially is to 
foster justice and eliminate chances of perpetuating illegality. 
Principal aim and spirit underlying judicial review of orders 
passed or actions taken by executive or quasi-judicial forums is 
to respect law and to enforce primacy of the Constitution and the 
law. There can be no cavil with the proposition that writ 
jurisdiction is completely discretionary in nature and invocable in 
order to meet blatant illegalities, total lack of jurisdiction, 
unwarranted exercise of authority otherwise not conferred by law 
or preventing retention of ill-gotten gains. Discretion exercised 
within the contemplation of Articles 185 & 187 of the 
Constitution by this Court is a too wide in nature and stands at a 
higher pedestal. It is obligatory for this Court to ensure that apart 
from legal requirements broad equitable principles of law are not 
infringed so that complete justice can be dispensed with if 
equitable situation demands and legal formulations do not take 
the controversy to its logical end. This Court would be grossly 
failing in duty if it over-looks equitable considerations and alters 
the 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 whether 
a particular case involved the element of "public importance" is a 
question which is to be determined by this Court with reference to 
the facts and circumstances of each case. There is no hard and 
fast rule that an individual grievance can never be treated as a 
matter involving question of public importance. Similarly it 
cannot be said that a case brought by, a large number of people 
should always be considered as a case of "public importance" 
because a large body of persons is interested in the case. The 
public importance of a case is determined as observed by this 
Court in Manzoor Ellahi's case, supra, by decision on questions 
affecting the legal rights and liberties of the people at large, even 
though the individual who may have brought the matter before 
the Court is of no significance. Similarly, it was observed in 
Benazir Bhutto's case, supra, that public importance should be 
viewed with reference to freedom and liberties guaranteed under 
Constitution, their protection and invasion of these rights in a 
manner which raises a serious question regarding their 
enforcement, irrespective of the fact whether such infraction of 
right, freedom or liberty is alleged by an individual or a group of 
individuals. In the case of Employees of Pakistan Law 
Commission v. Ministry of Works 1994 SCMR 1548, Saleem 
Const. Petition No.127 of 2012 
105 
Akhtar, J., relying on the observations in Benazir Bhutto's case, 
supra, on the scope of Article 184(3) of the Constitution observed 
as follows:-- 
  
"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 move the Supreme Court nor does it say by 
what proceedings the Supreme Court may be so moved. or 
whether it is defined to the enforcement of the Fundamental 
Rights of an individual which are infracted or extends to the 
enforcement of the rights of a group or a class of persons 
whose rights are violated. " 
  
……. ……………………………………………………………….. 
……………………………………………………………………………………. 
 
 
From the above discussion, it is quit clear that this Court 
while construing the provisions of Article 184(3) of the 
Constitution did not follow the conventional interpretative 
approach based on technicalities and ceremonious observance of 
rule or usage of interpretation. Keeping in view the avowed spirit 
of the provision, this Court, preferred the interpretative approach 
which received inspiration from the triad of provision which 
saturated and invigorated the entire Constitution, namely, the 
Objectives Resolution (Article 2A), the Fundamental Rights and 
Directive Principles of State Policy so as to achieve, democracy, 
tolerance, equality and social justice according to Islam. This 
liberal interpretative approach opened the door of "access to 
justice to all". 
65. 
As a result of above discussion with detailed reference to 
some celebrated judgments of this Court, we have no hesitation to 
hold that this petition is very much competent and maintainable, 
thus, no exception could be taken to its maintainability on any of 
the grounds urged by the learned Sr.ASCs/ASCs and the retired 
judges of the High Court. 
66. 
To proceed further, as the whole controversy in the 
present proceedings originates and revolves around the “right to 
pension” of honourable retired judges of the High Court, before 
examining the above noted point No.2, as a next step it will be 
appropriate rather useful to dilate upon the true connotation and 
concept of pension, which has undergone radical changes in the 
Const. Petition No.127 of 2012 
106 
last century. In this regard, it will be useful to reproduce 
hereunder 
few 
definitions 
of 
word 
“pension” 
from 
some 
authoritative books/dictionaries and thereafter to reproduce some 
discussion 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 on 
length of employment and amount of wages or salary of 
pensioner. Deferred compensation for services rendered.” 
In the New Encyclopedia Britannica Vol.9, 15th Edition 
at p.266 the following is laid down for the term 
“Pension”:- 
 
“Pension: Series of periodic money payments made to a 
person 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 the 
natural life of the recipient, and sometimes to a widow or 
other survivor. Military pensions have existed for many 
centuries; private pension plans originated in Europe 
during the 19th century. Eligibility for and amounts of 
benefits are based on a variety of factors, including length 
of employment, age, earnings, and, in some cases, past 
contributions.” 
In Law Laxican defined “pension” as follows:- 
Pension defined, Act 21, 1886, S.2-241C803 a periodical 
payment made by a Government, company or, any 
employer or labour in consideration of past services or the 
relinquishment of rights; claims or emoluments; regular 
payments to persons in order that they may maintain 
themselves. 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 with 
the 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 
107 
regard, 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, Volume 
70, page 423, American Jurisprudence, Volume 40, pages 980 
and 981, and para. 29 from the judgment in the case of D.S. 
Nakara and others v. Union of India (supra), which read as 
follows:-- 
 Extract from Encyclopaedia Britannica Vol. 17 1963 
Edition Page 488.---"Pensions are periodic payments, 
usually for the natural life of a person who retires because 
of age or disability. Sometimes the term refers to, periodic 
payments to wives, widows or children of a primary or 
deceased person or pensioner; occasionally, a pension will 
be conveyed solely as an honour for conspicuous service 
or valour. Pensions are provided by Government in three 
guises: (1) as compensation or recompense to war veterans 
and families for old age or for disability or death, usually 
from service causes; (2) as disability or old age retirement 
benefits for civilian employees of government; (3) as social 
security payments for the aged, disabled or deceased 
citizenry based on past employment history or subject to 
current evidence of need. Pensions are also provided by 
many non-Governmental employers as a means of 
protecting workers retiring for age or disability and for 
relieving the payroll of superannuated personnel. They are 
sometimes provided by union-management welfare funds, 
associations or trusteeships. Only rarely do employees in 
groups, associations or unions undertake their own 
pension programme without employer or Government 
assistance." 
 Extract from Corpus Juris Secundum. Vol. 67. pages 
763-764.---"Except as limited by the Constitution the 
establishment of a pension system is within the scope of 
the legislative power. The granting of pensions to public 
officers or public employees serves the public purpose, 
and is designed to induce competent persons to enter and 
remain in the public' service or employment, and to 
encourage the retirement from public service of those who 
have become incapacitated from performing their duties as 
well as they might be performed by younger or more 
vigorous persons. It has also been stated that a pension 
system is intended to promote efficient, continued and 
faithful service to the employer and economic security to 
the employees and their dependents, by an arrangement 
Const. Petition No.127 of 2012 
108 
under 
which, 
by 
fulfilment 
of 
specified 
eligibility 
requirements, pensions become property of the individual 
as a matter of right upon the termination of public 
service." 
Extract from Corpus Juris Secundum. Vol. 70, page 
423.---"A pension is a periodical allowance of money 
granted by the Government in consideration or recognition 
of meritorious past services, or of loss or injury sustained 
in the public service. A pension is mainly designed to 
assist the pensioner in providing for his daily wants, and 
it presupposes the continued life of the recipient." 
Extract from American Jurisprudence, Vo1.40, pages 980 
and 981.---"The right to a pension depends upon statutory 
provisions therefore, and the existence of such right in 
particular instances is determinable primarily from the 
terms of the statute under which the right or privilege is 
granted. The right to a pension may be made to depend 
upon such conditions. as the grantor may see fit to 
prescribe. Thus, it has been held that it may be provided, 
in a general Pension Act, that any person who accepts the 
benefits thereof shall forfeit his right to a special pension 
previously granted." 
 Para. 29 from the judgment in the case of D.S. Nakara 
and others v. Union of India (supra).---"Summing-up it 
can be said with confidence that pension is not only 
compensation for loyal service rendered in the past, but 
pension also has a broader significance, in that it is a 
measure of socio-economic justice which inheres economic 
security in the fall of life when physical and mental 
prowess is ebbing corresponding to aging process and, 
therefore, one is required to fall back on savings. One 
such saving in kind is when you give your best in the hey 
day of life to your  employer, in days of invalidity, 
economic security by way of periodical payment is 
assured. The term has been judicially defined as a stated 
allowances or stipend made in consideration of past 
service or a surrender of rights or emoluments to one 
retired from service. Thus the pension payable to a 
Government employee is earned by rendering long and 
efficient service and therefore can be said to be a deferred 
portion of the compensation for service rendered. In one 
sentence one can say that the most practical raison d'etre 
for pension is the inability to provide for oneself due to 
Const. Petition No.127 of 2012 
109 
old-age. One may live and avoid unemployment but not 
senility and penury if there is nothing to fall back upon." 
 16.  
It seems that there are various kinds of pension schemes 
which 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 Pension 
Schemes. Each of the above category can be sub-divided into a 
number of sub-categories according to the object for which a 
particular scheme is designed. In the instant case, we are mainly 
concerned 
with 
the 
pension 
schemes 
meant 
for 
public 
employees/public officers, who are known in the Sub-Continent 
as civil servants. 
  
A pension is intended to assist a retired civil servant in 
providing for his daily wants so long he is alive in consideration of 
his past services, though recently the above benefit has been 
extended inter alia in Pakistan to the widows and the dependent 
children of the deceased civil servants. The raison d'etre for 
pension seems to be inability to provide for oneself due to old-age. 
The right and extent to claim pension depends upon the terms of 
the relevant statute under which it has been granted. 
 17. In the Sub-Continent during the British Rule since it was 
considered that the salary which a -civil servant drew was a 
bounty, the same view was held in respect of the pension. 
However, the above controversy has been settled inasmuch as 
this Court in more than one case; has held that the concept that 
the salary which a civil servant drew was a bounty, was no longer 
the law of the country. Reference may be made to the case of The 
State of Pakistan and another v. Mehrajuddin (P L D 1959 S C 
(Pak.) 147). As regards the right to claim pension, the controversy 
has been set to rest by this Court inter alia in the case of The 
Government 
of 
N-W.F.P. 
through 
The 
Secretary 
to 
the 
Government 
of 
N.-W.F.P.. 
Communication 
and 
Works 
Departments, Peshawar v. Muhammad Said Khan and another (P 
L D 1973 S C 514), wherein the following view has been taken:-- 
"It must now be taken as well-settled that a person who 
enters Government service has also something to look 
forward after his retirement, to what are called retirement 
benefits, grant of pension being the most valuable of such 
benefits. It is equally well-settled that pension like salary of 
a civil servant is no longer 'a bounty but is a right acquired 
after putting in satisfactory service for the prescribed 
minimum period. A fortiori, it cannot be reduced or refused 
arbitrarily except to the extent and in the manner provided 
Const. Petition No.127 of 2012 
110 
in the relevant rules. Conversely full pension admissible 
under the rules is not to be given as a matter of course 
unless the service rendered has been duly approved. (See 
Article 470, Civil Service Regulations). It is equally 
well-settled that if the service has not been thoroughly 
satisfactory, the authority sanctioning the pension is 
empowered under the said Article to make such reduction 
in the amount as it may deem proper. This power is 
however exercisable only before pension is actually 
sanctioned." 
The same view has been taken by the Indian Supreme Court in 
the case of Deokinandan Prasad v. State of Bihar and others (AIR 
1971 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 SC 
130) and Kerala State Road Transport Cooperation v. K.O 
Varghese and others (AIR 2003 SC 3966)] 
67. 
The gist of the discussion made in the above cited cases 
on the subject of pension is that it is a right which the Government 
servants or employees in different positions and different capacities 
earn in terms of the relevant statutory provisions applicable to 
their case, mostly depending upon their length of service. In any 
case it is not a State bounty which can be awarded to any 
individual outside the scope of the applicable statute, as a favour. 
68. 
After the above discussion, when we move forward to 
dilate upon, discuss and adjudicate the second point relating to 
the interpretation of Article 205, read with Fifth Schedule to the 
Constitution and applicable President’s Order in the light of 
submissions made before us and the law, we deem it appropriate 
to firstly, discuss the concept of interpretation of statutes, 
particularly the constitutional provisions; briefly trace out the 
history of legislation in this context; reproduce hereunder the 
relevant statutory provisions commencing from Government of 
India Act, 1935; various Orders/President’s Orders relating thereto 
in sequence, and also to give a brief resume/ comment on the 
Const. Petition No.127 of 2012 
111 
statutory provisions of some other countries regulating pensionary 
benefits of the honourable retired judges of the superior Courts in 
those countries, with specific reference to the requirement of 
minimum length of service to earn the right to pension, as they are 
somewhat “pari materia” to the constitutional provisions and the 
President’s Order in vogue in our country. 
69. 
As regards the concept of interpretation, we find that it is 
a method by which the true sense or meaning of the word is traced 
out and understood. The process by which a Judge or a person or 
a lawyer associated in the search of meaning of a statute, 
constructs from the word of statute book a meaning, which he 
either believes to be intent of the legislature or which he proposes 
to attribute to it, is called “interpretation”. Salmond in his famous 
book on the Interpretation of Statutes, describes interpretation or 
construction as the process by which Courts seek to ascertain the 
meaning of the legislature through the medium of authoritative 
forms in which it is expressed. Other renowned jurists and legal 
experts have designated the principle of interpretation of statute as 
‘an art of proliferating a purpose’, or a science by itself and the 
purpose behind interpretation is to seek the intention of its law 
maker. In the same context, when we revert to some well 
recognized principles of interpretation of statute, we find the 
following basic principles outlined for this purpose. 
“a. 
That the entire Constitution has to be read as an 
integrated whole. 
b. 
No one particular provision should be so construed as to 
destroying the other, but each sustaining the other 
provision. 
This 
is 
the 
rule 
of harmony, 
rule 
of 
completeness and exhaustiveness. 
c. 
Interpretation to be consistent with the Injunctions of 
Islam. 
Const. Petition No.127 of 2012 
112 
d. 
It must always be borne in mind that it is only where the 
words are not clear, or the provision in question is 
ambiguous, that is, it is fairly and equally open to diverse 
meanings, that the duty of interpretation arises. 
e. 
Intention to be gathered from the language of the 
enactment, otherwise known as the ‘plain meaning rule’. 
f. 
It is elementary rule of construction that it is to be 
assumed that the words and phrases of technical 
legislation are used in their technical meaning, if they 
have acquired one, and otherwise in their ordinary 
meaning. Critical and subtle distinctions are to be avoided 
and the obvious and popular meaning of the language 
should, as a general rule, be followed. 
g. 
It is a cardinal rule of construction of statutes that no 
words are to be added or omitted or treated as surplusage 
or redundant. 
h. 
That the words of written Constitution prevail over all 
unwritten conventions, precedents and practices to the 
contrary. 
i. 
Legislative 
history 
is 
relevant 
for 
interpreting 
constitutional provisions.” 
70. 
Having discussed above the concept of “Pension” and 
“interpretation of statutes” , for ready reference, now we reproduce 
in sequence the relevant constitutional provisions, President’s 
Orders etc as under:- 
Government of India Act, 1935.  
 
“Salaries, &c.  
of judges 
221.  The judges of the several High Courts 
shall. be entitled to such salaries and allowances, 
including allowances for expenses in respect of 
equipment and travelling upon appointment, and 
to such rights in respect of leave and pensions, as 
may from time to time be fixed by His Majesty in 
Council:  
 
Provided that neither the salary of a judge, 
nor his rights in respect of leave of absence or 
pension, shall be varied to his disadvantage after 
his appointment.” 
 
THE HIGH COURT JUDGES ORDER, 1937 
 
“…………………………………………………………………………………… 
……..AND WHEREAS by section two hundred and twenty-one of 
the Act it is provided that the Judges of the several High Courts 
Const. Petition No.127 of 2012 
113 
shall be entitled to such salaries and allowances, including 
allowances for expenses in respect of equipment and travelling 
upon appointment, and to such rights in respect of leave and 
pensions, as may from time to time be fixed by His Majesty in 
Council: 
. 
. 
. 
PENSIONS 
17.—(1) Subject to the provisions of this Order, a pension shall be 
payable to a Judge on his retirement if, but only if, either – 
(a) 
he has completed not less than 12 years’ service 
for pension; or 
(b) 
he has completed not less than 7 years’ service for 
pension and has attained the age of sixty; or 
(c) 
he has completed not less than 7 years’ service for 
pension and his retirement is medically certified to 
be necessitated by ill-health. 
(2) 
the President may for special reasons direct that any 
period not exceeding three months shall be added to a Judge’s 
service for pension. 
 
Provided that a period so added shall be disregarded in 
calculating any additional pension under Part I or Part II of the 
Third Schedule to this Order.” 
THE CONSTITUTION OF INDIA, 1949  
(Pre 54th Amendment) 
“221. Salaries, etc., of Judges.—(1) There shall be paid to the 
Judges of each High Court such salaries as are specified in the 
Second Schedule. 
 
(2) 
Every Judge shall be entitled to such allowances 
and to such rights in respect of leave of absence and pension as 
may from time to time be determined by or under law made by 
Parliament and, until so determined, to such allowances and 
rights as are specified in the Second Schedule: 
 
Provided that neither the allowances of a Judge nor his 
rights in respect of leave of absence or pension shall be varied to 
his disadvantage after his appointment.” 
(Post 54th Amendment) 
“221.  
Salaries, etc., of Judges.—(1) There shall be paid to 
the Judges of each High Court such salaries as may be 
determined by Parliament by law and, until provision in that 
Const. Petition No.127 of 2012 
114 
behalf is so made, such salaries as are specified in the Second 
Schedule. 
 
(2) 
Every Judge shall be entitled to such allowances 
and to such rights in respect of leave of absence and pension as 
may from time to time be determined by or under law made by 
Parliament and, until so determined, to such allowances and 
rights as are specified in the Second Schedule: 
 
Provided that neither the allowances of a Judge nor his 
rights in respect of leave of absence or pension shall be varied to 
his disadvantage after his appointment. 
 
“Salaries”.—The salaries received by the High Court/the 
Supreme Court Judges are “salaries” and are taxable under the 
Income 
Tax 
Act, 
though 
the 
Judges 
are 
Constitutional 
functionaries having no employer.” 
The Constitution of the Islamic Republic of Pakistan, 1956. 
“175.—(1) The remuneration and other conditions of service of a 
Judge of the Supreme Court or of a High Court shall not be varied 
to his disadvantage during his tenure of office. 
(2)  
Subject to Article 151, the conduct of a Judge of the 
Supreme Court or of a Judge of a High Court shall not be 
discussed in the National or a Provincial Assembly. 
176. 
……. 
177. 
Until other provisions in that behalf are made by Act of 
Parliament, the provisions of the Third Schedule shall apply in 
relation to the Supreme Court and High Courts in respect of 
matters specified therein. 
THIRD SCHEDULE 
(Articles 159 and 177) 
The Judiciary 
PART I 
THE SUPREME COURT 
1. 
Salary and allowances of Judges. – ………. 
_______________________ 
PART II 
THE HIGH COURTS 
4. 
Salaries of Judges.—(1) There shall be paid to the Chief 
Justice of a High Court a salary of Rs.5,000 per mensem, and to 
every 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 such 
other privileges and allowances, including allowances for 
expenses in respect of equipment and travelling upon first 
appointment, and to such rights in respect of leave of absence 
and pensions as may be determined by the President, and until 
so determined to the allowances, privileges and rights which 
immediately before the Constitution Day, were admissible to the 
Judges of the High Court, and the provisions of the Government 
of India (High Court Judges) Order, 1937, shall, subject to the 
provisions 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 of 
service of a Judge of the Supreme Court or of a High Court shall 
be as provided in the Second Schedule. 
 
SECOND SCHEDULE 
Article 124 
Remuneration and Terms and Conditions of Service of Judges 
THE SUPREME COURT 
1. 
There shall be paid to the Chief Justice of the Supreme 
Court a salary of Rs.5,500 per mensem, and to every other Judge 
of the Supreme Court a salary of Rs.5,100 per mensem. 
2. 
Every Judge of the Supreme Court shall be entitled to 
such privileges and allowances, and to such rights in respect of 
leave of absence and pension, as may be determined by the 
President, and until so determined, to the privileges, allowances 
and rights to which, immediately before the commencing day, the 
Judges of the Supreme Court of Pakistan were entitled. 
THE HIGH COURTS 
1. 
There shall be paid to the Chief Justice of a High Court a 
salary of Rs.5,000 per mensem,  and to every other Judge of a 
High Court a salary of Rs.4,000 per mensem. 
2. 
Every Judge of a High Court of a Province shall be entitled 
to such privileges and allowances, and to such rights in respect of 
leave of absence and pension, as may be determined by the 
President, and until so determined, to the privileges, allowances 
and rights to which, immediately before the commencing day, the 
Judges of the High Court of the Province were entitled.” 
 
 
Const. Petition No.127 of 2012 
116 
“PRESIDENT'S ORDER 9 OF 1970 
HIGH COURT JUDGES (LEAVE, PENSION AND PRIVILEGES) 
ORDER, 1970 
 
PART I-PRELIMINARY 
 1. Short title and commencement.-(l ) This Order may be called 
the High Court Judges (Leave, Pension and Privileges) Order, 
1970. 
. 
. 
. 
PART III – PENSION 
13. Conditions of admissibility of pension.—A Judge shall, on his 
retirement, resignation or removal, be paid a pension in 
accordance with the provisions of this Order if he has – 
(a) completed not less than five years of service for pension 
and attained the retiring age; or 
(b) completed not less than ten years of service for pension 
and, before attaining the age, resigned; or 
(c)completed not less than five years of service for pension 
and, before attaining the retiring age, either resigned, his 
resignation 
having 
been 
medically 
certified 
to 
be 
necessitated by ill-health, or been removed for physical or 
mental incapacity: 
Provided that, for the purpose of clause (a) of Part I of the 
First Schedule a deficiency of three months or less in the 
service for pension as Judge shall be deemed to have been 
condoned. 
14. Determination of pension.—Subject to the provisions of this 
Order, the pension payable to a Judge who, on his retirement, is 
entitled to a pension under this Order shall be calculated— 
(a) in the case of a Judge who is not a member of a service in 
Pakistan or who immediately before his appointment as a  
Judge did not hold any other pensionable civil post in 
connection with the affairs of the Centre or of a Province, in 
accordance with the provisions of Part I of the First Schedule; 
(b) in case of a Judge who is a member of a civil service in 
Pakistan or who immediately before his appointment as a 
Judge held any other pensionable civil post in connection with 
the affairs of the Centre or of a Province, in accordance with 
the provisions of Part II of the First Schedule, unless he elects 
to receive pension under Part I of the said Schedule. 
15. Pension of Judges not covered by paragraph 13.—A Judge 
who immediately before his appointment as such was a 
member of a civil service in Pakistan or was holding a post in 
connection with the affairs of the Centre or of a Province and 
who does not fulfill the conditions laid down in paragraph 13 
shall, on retirement, be entitled to such pension as would 
have been admissible to him in his service or post, had he not 
Const. Petition No.127 of 2012 
117 
been appointed a Judge, his service as a Judge being treated 
as service for the purpose of calculating that pension.” 
 
Constitution of the Islamic Republic of Pakistan, 1973 
PART VII 
THE JUDICATURE 
 
CHAPTER 4-GENERAL PROVISIONS RELATING TO THE JUDICATURE 
. 
. 
. 
205. Remuneration, etc., of Judges. The remuneration and other terms 
and conditions of service of a Judge of the Supreme Court or of a High 
Court shall be as provided in the Fifth Schedule.  
 
FIFTH SCHEDULE  
[Article 205] 
Remuneration and Terms and Conditions of Service of Judges. 
THE SUPREME COURT 
1.  
There shall be paid to the Chief Justice of Pakistan a 
salary of Rs.9,900 per mensem, and to every other Judge of the 
Supreme Court a salary of Rs.9,500 per mensem, or such higher 
Salary as the President may, from time to time determine.  
2. 
 Every Judge of the Supreme Court shall be entitled to 
such privileges and allowances, and to such rights in respect of 
leave of absence and pension, as may be determined by the 
President, and until so determined, to the privileges, allowances 
and rights to which, immediately before the commencing day, the 
Judges of the Supreme Court of Pakistan were entitled. 
3.  
The pension payable to a retired Judge of the Supreme 
Court per mensem shall not be less or more than the amount 
specified in the table below, depending on the length of his service 
as Judge in that Court or a High Court: 
 
Provided that the President may, from time to time, raise 
the minimum or maximum amount of pension so specified:- 
Judge  
Minimum amount Maximum amount 
Chief Justice 
Rs. 7,000 
Rs. 8,000 
Other Judge  
Rs. 6,250 
Rs. 7,125 
4.  
The widow of a Judge of the Supreme Court shall be 
entitled to a pension at the following rates, namely:- 
(a)  
if the Judge dies after retirement - 50 per cent of 
the net pension payable to him; or 
(b)  
if the Judge dies after having rendered not less 
than three year's service as Judge and while still 
serving as such - 50 per cent of the pension 
admissible to him at the minimum rate. 
5.  
The pension shall be payable to the widow for life or, if she 
remarries, until her marriage. 
6.  
If the widow dies, the pension shall be payable:- 
(a) 
 to the sons of the Judge who are less than twenty-
one years of age, until they attain that age; and 
Const. Petition No.127 of 2012 
118 
(b)  
to the unmarried daughters of the Judge who are 
less than twenty-one years of age, until they attain 
that age or are married, whichever first occurs. 
THE HIGH COURT 
1. There shall be paid to the Chief Justice of a High Court a 
salary of Rs. 9,400 per mensem, and to every other Judge of a 
High Court a salary of Rs.8,400 per mensem, or such higher 
salary as the President may, from time to time, determine. 
2. Every Judge of a High Court shall be entitled to such privileges 
and allowances, and to such rights in respect of leave of absence 
and pension, as may be determined by the President, and until so 
determined, to the privileges, allowances and rights, to which, 
immediately before the commencing day, the Judges of the High 
Court were entitled. 
3. The Pension payable per mensem to a Judge of a High Court 
who retires after having put in not less than five years service as 
such Judge shall not be less or more than the amount specified 
in the table below, depending on the length of his service as 
Judge and total service, if any, in the service of Pakistan: 
Provided that the President may, from time to time, raise the 
minimum or maximum amount of pension so specified:- 
Judge  
Minimum amount 
Maximum amount 
Chief Justice 
Rs. 5,640 
Rs. 7,050 
Other Judge  
Rs. 5,040 
Rs. 6,300 
4. The widow of a Judge of the High Court shall be entitled to a 
pension at the following rates, namely:- 
(a) 
 if the Judge dies after retirement - 50 per cent of 
the net pension payable to him; or 
(b)  
if the Judge dies after having rendered not less 
than five years' service as Judge and while still 
serving as such - 50 per cent of the pension 
admissible to him at the minimum rate. 
5. The pension shall be payable to the widow for life, or, if she 
remarries until her marriage. 
6. If the widow dies, the pension shall be payable:- 
(a) 
to the sons of the Judge who are less than twenty-
one years of age, until they attain that age; and 
(b) 
to the unmarried daughters of the Judge who are 
less than twenty-one years of age, until they attain 
that age or are married, whichever first occurs.  
High Court Judges (Leave, Pension and Privileges) Order, 1997 
PRESIDENT'S ORDER 3 OF 1997 
 
“PART I-PRELIMINARY 
 1. Short title and commencement.-(l ) This Order may be called 
the High Court Judges (Leave, Pension and Privileges) Order, 
1997. 
(2) 
It shall come into force at once and paragraph 
15 shall be deemed to have taken effect on the 27th day of July, 
1991. 
Const. Petition No.127 of 2012 
119 
 
2. 
Definitions.— ……….. 
  
(a) 
…… 
 
(b) 
“actual service” means the time spend by a Judge 
on duty as such or in the performance of such 
other functions as he may be required under any 
law to perform or may be requested by the 
President or the Governor to discharge and 
includes vacation (but excluding any time during 
which the Judge is absent on leave) and joining 
time on transfer from— 
(i)  
a High Court to the Supreme Court; 
(ii)  
the Supreme Court to a High Court; 
(iii) 
one High Court to another; 
(iv)  
one permanent seat of a High Court to 
another permanent seat ; 
(v)  
a High Court to the place where he is 
required under any law to perform any 
function; and 
(vi)  
from a place where he is required under 
any law to perform any function to another 
such place or to a High Court; 
(c) 
“Additional Judge” means a Judge appointed by 
the President to be an Additional Judge; 
(d-e) 
……... 
(f) 
“Judge” means a Judge of High Court and include 
the Chief justice, and Acting Chief Justice and an 
Additional Judge; 
. 
. 
. 
PART III. PENSION 
 
14. 
The condition or admissibility of pension.—A Judge 
shall, on his retirement, resignation or removal, be paid a pension 
in accordance with the provisions of this Order if he has-- 
(a) 
completed not less than five years of service for 
pension and attained the retiring age; or 
(b) 
completed not less than five years of service for 
pension and before attaining the age, resigned or 
sought retirement; or 
(c) 
completed not less than five years of service for 
pension and, before attaining the retiring age, 
either resigned, his resignation having been 
medically certified to be necessitated by ill-health 
or been removed for physical or mental incapacity 
or been allowed by the President for sufficient 
cause to retire. 
Const. Petition No.127 of 2012 
120 
15. 
Payable Pension.— The Chief Justice and a Judge on his 
retirement, resignation or removal as provided in paragraph 14 
shall be entitled to the minimum amount of pension equal to 
seventy per cent of the salary determined by the President from 
time to time payable to the Chief Justice, or as the case may be, a 
Judge on the completion of five years service for pension as 
Judge, and therefore an extra pension at the rate of two per cent 
of such salary for each subsequent completed year of service as 
the Chief Justice or, as the case may be, the Judge, including his 
service if any, in the service of Pakistan the maximum pension 
not exceeding eighty per cent of the said salary. 
 
Provided that for the period between twenty-seventh day of 
July, 1991 and the thirty-first day of May, 1994 the minimum 
and the maximum amounts shall refer to the amounts specified 
in the Pension of Judges of Superior Courts Order, 1993 (P.O.2 of 
1993). 
 
Explanation.—The expression ‘salary’ means the salary 
referred to in paragraph 1 of the Fifth Schedule to the 
Constitution of the Islamic Republic of Pakistan or such higher 
salary as the President may determine from time to time and shall 
include Superior Judicial allowance but shall not include any 
allowance or amount representing any other privilege or facility. 
15A. 
……… 
16. 
Pension of Judges not covered by paragraph 14.—A 
Judge who immediately before his appointments as such was a 
member of a civil service in Pakistan or was holding a post in 
connection with the affair of the Federation or of a Province and 
who does not fulfill the conditions laid down in paragraph 14 
shall, on retirement, be entitled to such pension as would has 
been admissible to him in service or post. Had he not been 
appointed a Judge, his service as Judge being treated as service 
for the purpose of calculating that pension.” 
. 
. 
. 
29. 
Subsidiary conditions of service.—Subject to the 
provisions of this Order and such other provisions as the 
President may make in this behalf, the other privileges and rights 
of a Judge shall be determined by the rules for the time being 
applicable to an officer appointed by the President and holding 
the rank of secretary to the Government of Pakistan: 
 
Provided that nothing in this paragraph shall have effect 
so as to give to a Judge who is a member of a civil service less 
favourable terms in respect of his conditions of service than those 
to which he would have been entitled as a member of such service 
if he had not been appointed as a Judge, his service as Judge 
Const. Petition No.127 of 2012 
121 
being treated as service for the purpose of determining those 
privileges and rights.” 
(Underlining in the above reproductions is ours, which is 
made for emphasis) 
71. 
A careful reading of above reproduced relevant constitutional 
provisions; Article 221 of the Government of India Act, 1935; Article 
221 of the Constitution of India, 1949; Article 175 of the Constitution 
of Islamic Republic of Pakistan, 1956; Article 124 of the Constitution 
of Islamic Republic of Pakistan, 1962; and, Article 205 of the 
Constitution of Islamic Republic of Pakistan, 1973, read with relevant 
Schedules to the Constitution, reveals that they are “pari materia” to 
the extent of entitlement to privileges and allowances and to such 
rights in respect of leave of absence and pension, and in this context, 
from time to time, High Court Judges Order 1937, President’s Order 
9 of 1970 and President’s Order 3 of 1997, were issued to determine 
the moot question as to their right to pension. Here a reference to 
some repealed provisions of the Constitution and the High Court 
Judges Order/President’s Orders has been made only to show that in 
the High Court Judges Order 1937, condition of minimum length of 
service for a High Court Judge for his entitlement/right to pension, in 
the normal course, was 12 years and on attaining the age of sixty 
years, it was seven years, so also in the cases where retirement was 
medically certified to be necessitated due to ill-health, while the 
President was further conferred with power that for special reasons, he 
may direct that any period not exceeding three months shall be added 
to a Judge’s service for pension. The relevant provision of President’s 
Order 9 of 1970, dated 17.6.1970, paragraph 23 whereof repealed 
the earlier High Court Judges Order 1937, was its paragraph 13, 
which provided one clear condition for entitlement of right to pension 
as minimum length of actual service of five years on attaining the 
Const. Petition No.127 of 2012 
122 
retiring age in the normal course and in case of resignation not 
less than ten years service. Further, paragraph 15 of this 
President’s Order contained provision as regards the right to 
pension of other Judges, who were not covered by paragraph 13. In 
the President’s Order 3 of 1997, introduced in the year 1997 and 
brought 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’ were 
specifically provided, while section 14 dealt with the condition of 
admissibility of pension of the retired judges. A bare reading of 
President’s Order 3 of 1997 clearly spells out that every Judge of 
the High Court, having completed not less than five years of actual 
service as such on attaining the retiring age, is entitled for 
pensionary benefits. This provision is further subject to paragraph 
29 of the President’s Order 3 of 1997, relating to the “subsidiary 
conditions of service”. A close look at the Fifth Schedule to Article 
205 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-2 
and 3 relating to High Court, are the two relevant provisions of the 
Constitution, which in unequivocal term provide that in terms of 
paragraph-2 “EVERY JUDGE” of a High Court shall be entitled to 
such “PRIVILEGES”, “ALLOWANCES”, and to such “RIGHTS” in 
respect of leave of absence and “PENSION” as may be determined 
by the President, and until so determined, with the privileges, 
allowances 
and 
rights, 
to 
which 
immediately 
before 
the 
commencing day, the judges of the High Court were entitled. From 
the language of paragraph-2, it is also clear that it only refers to 
one category of judges of the High Court i.e. “Every Judge”. To put 
Const. Petition No.127 of 2012 
123 
it in other words, there are no two categories of judges specified 
therein as many senior ASCs and retired judges of the High Court 
have argued before us while supporting their claim despite they 
having rendered less than five years actual service as such. What 
is important to notice here is that firstly right to pension is to be 
determined by the President for every judge of the High Court and 
until such determination, the privileges, allowances and rights 
already in-force before the commencing day, are to be availed by all 
of them. Keeping in view this clear and unambiguous language of 
paragraph-2 (ibid), when we revert to the provisions of paragraph 
13 of the President’s Order 9 of 1970, relating to conditions of 
admissibility of pension, we find that till its repeal vide paragraph 
30 of President’s Order 3 of 1997, rights of every Judge of the High 
Court were already determined in the manner that unless they had 
completed not less than five years of service before retiring age, 
they were not eligible or entitled to any pensionary benefits. It was 
in this background that none of the retiring honourable judge of 
the High Court, having less than five years service as such to his 
credit, ever ventured to agitate such claim. In the year 1997, when 
the President’s Order 3 of 1997 was promulgated with immediate 
effect (except its section 15, which was made applicable 
retrospectively w.e.f. 07.7.1991), under paragraph 14, a similar 
condition of not less than five years service before attaining the 
retiring age was engraved, and the position under paragraph 17 of 
the High Court Judges Order, 1937 (repealed on 17.6.1970) was 
also not much different, except that requirement of length of 
service to earn right to pension at that time was minimum 12 years 
service in the normal course or in case of attaining the age of sixty 
years, not less than seven years. 
Const. Petition No.127 of 2012 
124 
72. 
Reverting to the language of paragraph-3 of Fifth 
Schedule to Article 205 of the Constitution of 1973, we find that in 
its original text, paragraph-3 had different phraseology, but it was 
subsequently amended in the present form by 12th amendment Act 
of 1991. However, in both the situations, right to pension of a 
retired High Court Judge was made conditional to not less than 
five years actual service, while a further table was provided for 
increase in the percentage of pension depending upon the length of 
his service as a Judge of the High Court upto the maximum of 80 
percent of his salary. Thus, the two paragraphs 2 and 3 of Fifth 
Schedule to Article 205 of the Constitution either read separately/ 
conjunctively or disjunctively, do not alter/change in any manner 
the requirement of minimum five years length of actual service for 
every Judge of the High Court as one of the basic condition to earn 
the right to pension. The arguments of learned ASCs based on the 
principle of reading down etc are, thus, of no avail in this regard. 
73. 
Reference to Article 207 of the Constitution, debarring the 
honourable retired Judges of the High Court to plead or act in any 
Court or before any authority within the jurisdiction of the High 
Court they have served in that capacity, arguments advanced by 
some of the learned ASCs in order to strengthen the case of those 
honourable retired Judges of the High Court, who retired before 
completing a period of minimum five years actual service as such, 
are equally without force. Firstly, for the reason that in view of the 
reasonable classification to the extent that they are not debarred 
from practicing before the High Courts of other Provinces and the 
Supreme Court, such limited restriction is not in conflict with the 
spirit of Article 18 of the Constitution relating to freedom of trade, 
Const. Petition No.127 of 2012 
125 
business or profession. Secondly, all the Judges who retired or 
resigned before completing their actual service as a High Court Judge 
for a minimum period of five years, knew well in advance at the time 
of their elevation to this high office that their total length of service 
upon appointment, looking to their date of birth qua retirement will 
be less than five years, therefore, as per Constitutional mandate and 
seventy five years old convention/usage, they will not be entitled to 
any pensionary benefit. In such circumstances, with profound 
respect, all these honourable retired Judges of High Court are 
estopped from agitating such grievance at this belated stage. This 
view, further gains support from the fact that except few 
honourable retired High Court Judges, who have now availed the 
benefit of judgment under challenge, though they retired in 70s, 
80s, 90s and upto the passing of judgment under challenge, no 
one ever put up his claim on the basis of interpretation of Article 
205 read with Fifth Schedule and President orders No.3 of 1997, 9 
of 1970, as now made applicable to their cases with reference to 
judgment under challenge. After all they all were highly skilled and 
qualified professional in the field of law and jurists in their own 
rights. Thus, any plea of ignorance of law or misinterpretation of 
the relevant Constitutional provisions for over seven decades 
doesn’t appeal to reason.  
74. 
Besides, the base line of minimum five years actual 
service to become entitled for pensionary benefits and to deny  the 
right to pension to other retired High Court Judges, who have not 
served as such for five years or more, applying the principles of 
interpretation of statutes as summarized in the preceding 
paragraph 69 and reading the Constitutional provisions and P.O’s 
Const. Petition No.127 of 2012 
126 
as a whole, gain full support from the language of High Court 
Judges Order 1937 (Repealed), President Orders i.e. President 
Order No.9 of 1970 (Repealed) and President Order No.3 of 1997, 
which also provide for a special provision for relaxation of such 
period upto certain limit by the President in hardship cases, where 
the required period of minimum five years service has remained 
short by few days or few months. For the argument sake, in case 
determination of right to pension of such category of Judges, who 
from time to time rendered less than five years actual service to 
their credit and retired, was yet to be made by the President then 
there was no necessity for insertion of such provision in both the 
President’s Order, as otherwise those hardship cases, having 
deficiency of few months, could have been separately dealt with 
during such process of determination. This view of the matter 
gains further support from the fact that in case right to pension as 
regards honourable retired Judges of the High Court, having less 
than five years actual service was yet to be determined, then why 
since the year 1937 uptil now, neither any such representation 
was made nor any legal remedy was followed by the honourable 
retired Judges allegedly qualifying for pension in that category. In 
this regard, we also confronted many learned Sr. ASCs to show us 
a single instance either of pre-partition days or thereafter wherein 
such interpretation of law was advanced or such grievance was 
ever agitated by any honourable retired Judge of the High Court 
falling in this category or earlier to judgment under challenge, any 
judge 
of 
the 
High 
Court 
was 
ever 
granted 
right 
to 
pension/pensionary benefits on the basis of his length of service as 
such for a period of few months or few years, irrespective of 
minimum required length of actual service, as has been held 
Const. Petition No.127 of 2012 
127 
through the judgment under challenge. In reply, they frankly 
conceded that they have not come across any such instance. All 
these facts taken together leave us in no doubt to hold that the 
judgment under challenge is outcome of improper assistance to the 
Court due to which number of relevant provisions of law necessary 
for a just and fair adjudication of this issue were entirely 
overlooked and the findings were built on entirely wrong premises. 
75. 
Another aspect of the case, which has been argued before 
us with vehemence by some of the learned ASCs, is the legal status 
of the judgment under challenge “as to whether it is a judgment in 
“personam” or a judgment in “rem”. In this regard some of the 
learned ASCs have also made reference to the cases Pir Bukhsh 
versus Chariman, Allotment Committeee  (PLD 1987 S. C. 145)  
and Federation of Pakistan versus Qamar Hussain Bhatti  (PLD 
2004 S.C. 77), which laid down the test of distinction between a 
“judgment in rem” and “judgment in personam”. In order to dilate 
upon the true meaning of these two legal phrases, some 
reproduction 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 in 
connection with actio, that is, actio in rem and actio in personam to 
denote the nature of actions, and with the disappearance of the Roman 
forms of procedure, each of the two terms “in rem” and “in personam” got 
tagged with the word judgments to denote the end-products of actions in 
rem and actions in personam. Thus, according to the civil law an actio in 
which a claim of ownership was made against all other persons was an 
action in rem and the judgment pronounced in such action was a 
judgment in rem and binding upon all persons whom the Court was 
competent to bind, but if the claim was made against a particular person 
or persons, it was an action in personam and the decree was a decree in 
personam and binding only upon the particular person or persons 
against whom the claim was preferred or persons who were privies to 
them.” 
Const. Petition No.127 of 2012 
128 
76. 
However this aspect has hardly any relevancy to the facts 
of the present proceedings, as while dealing with this issue, we 
have felt no difficulty in forming our view, as from the very 
language of the judgment under challenge, particularly, from its 
paragraphs 31 to 34, as reproduced below, it is clear that for all 
intent and purpose appeal against a private person challenging the 
judgment of the High Court regarding his individual grievance was 
widened in scope and treated as a judgment in rem, benefit 
whereof was open endedly extended even to other honourable 
retired Judges who were not party to the said appeal and even to 
those who were at one stage of the proceedings party through some 
miscellaneous applications, but had earlier withdrawn the same 
during its pendency. In addition to it, benefit of the judgment 
under challenge was also extended to the honourable retired 
Judges of the Federal Shariat Court of Pakistan, though prima-
facie no such issue was involved in the proceeding. For ease of 
reference, such paragraphs of judgment under challenge are 
reproduced as under:-  
“31.  
    Before parting with this judgment, we deem it proper to point 
out that Chief Justice and Judges of Federal Shariat Court are also 
entitled to the grant of pension and pensionary benefits available to the 
retired Judges of the Supreme Court and High Courts under the 
Constitution. The appointment of the Chief Justice and Judges-of the 
Federal Shariat Court is made by the President under Article 203-C of 
the Constitution and the terms and conditions of service of the Judges of 
the said Court are also determined by the President, therefore, 
notwithstanding the fixed tenure of the Chief Justice and Judges of the 
Federal Shariat Court, they are entitled to the terms and conditions of 
service and remunerations including pension and pensionary benefits at 
par to the Judges of the Supreme Court and High Courts, by virtue of 
Article 203-C(9) of the Constitution which provides as under:-- 
"(9) A Chief justice who is not a Judge of the Supreme Court shall 
be entitled to the same remuneration, allowances and privileges 
as are admissible to a Judge of the Supreme Court and a Judge 
who is not a Judge of a High Court shall be entitled to the same 
Const. Petition No.127 of 2012 
129 
remuneration, allowances and privileges as are admissible to a 
Judge of a High Court: 
Provided that where a Judge is already drawing a pension for any 
other post in the service of Pakistan, the amount of such pension 
shall be deducted from the pension admissible under the clause." 
32.    The Chief Justice or a Judge of Federal Shariat Court shall be 
entitled to the same salary, pension, allowances, privileges, including 
grant of leave/LPR and other benefits as are allowed to a Judge of the 
Supreme Court and High Court respectively. The plain reading of Article 
203-C of the Constitution read with Article 205 and Fifth Schedule of the 
Constitution would show that right of pension and pensionary benefits of 
the Chief Justice and Judges of Federal Shariat Court notwithstanding 
the length of service or fixed term of tenure is recognized under the 
Constitution 
and 
consequently, 
this 
judgment 
subject 
to 
the 
Constitution, shall be equally applicable in respect of the right of pension 
and pensionary benefits admissible to the Chief Justice and Judges of 
the Federal Shariat Court. 
33.  
In the light of foregoing reasons, we hold that all retired Judges of 
the High Courts who retire as such Judge in terms of Article 195 of the 
Constitution of Islamic Republic of Pakistan and the Chief Justices and 
Judges of the Federal Shariat Court notwithstanding the tenure 
appointment, are entitled to the pension and pensionary benefits in 
terms of Article 205 read with Fifth Schedule of the Constitution read 
with P.O. No.8 of 2007 and Article 203-C of the Constitution and all 
other enabling provisions of the Constitution as well as President's Order 
No.2 of 1993 and P.O.No.3 of 1997, irrespective of their date of 
retirement and length of service. The Miscellaneous Applications bearing 
No.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 and 
Muhammad Aqil Mirza, retired Judges of Lahore High Court, 1004/05 in 
C.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 Judge 
of Lahore High Court, 1368/05 in C.A. 1021/95 (filed by Dr. Munir 
Ahmad 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 the 
constitution petition as co-petitioner and in civil appeal as respondent, 
have already been allowed. 
34.      In consequence to the above discussion, 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 allowed and 
the petitioners/ applicants in these petitions and miscellaneous 
applications, along with all other retired Judges of the High Courts, who 
Const. Petition No.127 of 2012 
130 
are not party in the present proceedings, are held entitled to get pension 
and pensionary benefits with other privileges admissible to them in 
terms, of Article 205 of the Constitution read with P.O.No.8 of 2007 and 
Article 203-C of the Constitution read with paras 2 and 3 of Fifth 
Schedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the date of their 
respective retirements, irrespective of their length of service as such 
Judges.”. 
77. 
As a corollary of above discussion, it is also imperative and 
significant to mention here that the judgment under challenge was 
passed by a learned three member Bench of this Court consisting of 
M/s Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and 
Muhammad Farrukh Mahmood, JJ on 06.3.2008, at a time when the 
whole superior judiciary of the Country was in kayos, crises and 
disarray due to unconstitutional measures taken by the then 
President/dictator General (Retired) Pervez Musharraf of Pakistan, 
who by hook or crook wanted to remain in power and in that 
perspective attempted to destroy the institutions in the Country, 
particularly targeted the superior judiciary, to bring them under his 
thumb and control. The discussion regarding this aspect of the case 
in the present proceedings is enough to this extent. However, in this 
context if any further detailed discussion is felt orderly, reference can 
be made to the judgment of a full Bench of this Court in the case of 
Sindh High Court Bar Association (supra), wherein this aspect has 
been extensively discussed and aptly attended to. 
78. 
It is pertinent to mention here that while taking 
cognizance in these suo moto proceedings, we have exercised all 
care and caution to intimate all the Honourable Retired Judges of 
the High Court, who, in one or the other capacity have availed the 
benefit of judgment under challenge, to afford them due 
opportunity of hearing and for this purpose notices were also 
issued to the legal heirs of late Mr. Justice Ahmed Ali U. Qureshi. 
Const. Petition No.127 of 2012 
131 
Besides, offices of the Accountant General of all the four Provinces 
were also directed to bring on record all the relevant facts and 
figures in order to afford opportunity of hearing to all the 
concerned, but, as the judgment under challenge was given the 
status of judgment in rem, therefore, it is further made clear that 
irrespective of the fact whether some Honourable Retired Judges 
had notice or they participated in these proceedings or not, each 
one of them will be bound by the fallout of this judgment in the 
same manner as if they were party to these proceedings. This 
clarification is necessary as, particularly, the office of Accountant 
General Sindh and Balochistan have not come up before this Court 
in response to our order dated 3.4.2013, with clean hands, so 
much so that at one stage of these proceedings we had to initiate 
contempt proceedings against Deputy Accountant General Sindh 
for his negligent and irresponsible conduct in responding to our 
queries.  
79. 
There is yet another aspect of this case, which has been 
argued before us by some of the learned ASCs and Honourable 
Retired Judges of the High Court, who have been either elevated or 
have resigned from their offices after the judgment under 
challenge. They have contended that since at the relevant time of 
their elevation/resignation judgment under challenge was in full 
force applicable and implemented, therefore, valuable rights have 
accrued 
in 
their 
favour 
on 
the 
principle 
of 
locus 
poenitentiae/legitimate expectancy which cannot be taken away 
lightly by way of some observations in this case. Indeed, such 
submissions of some of the newly elevated or honourable retired 
Judges of the High Court are in line with the ratio of the judgment 
Const. Petition No.127 of 2012 
132 
under challenge, but at the same time it is to be noticed that the 
Honourable Judges, who have resigned from their office before 
completion of minimum five years service as such have to bless 
their own stars for this purpose because their mere oral assertion 
that they had to resign from their office under compelling 
circumstances, cannot be legally accepted. As regards the other 
Judges, who have taken oath of their office as High Court Judge 
after the judgment under challenge, suffice it to observe that since 
the said judgment has been declared by this Court as per incurium, 
null and void, therefore, any benefit on the principle of legitimate 
expectancy cannot hold the filed, more so, when as to their 
pensionary rights they are to be governed by the law in force at the 
relevant time i.e. Article 205 of the Constitution read with its Fifth 
Schedule and President’s Order No.9 of 1970 or 3 of 1997, 
regarding which a detailed discussion has already been made in 
the preceding paragraphs of this judgment, and not by the dicta 
laid down in the judgment under challenge, which has been 
declared “per incuriam”.  
80. 
Another angle for looking at the interpretation of the 
relevant Constitutional provision and the President’s Order, to view 
the right to pension of the honourable retired Judges of the High 
Court, having less than five years actual service, is admitted long 
standing convention/usage of its interpretation which has given it 
a status of statutory backing on the principle of “Optima Est Legis 
Interpres Consuetudo”, which is defined in Black’s Law Dictionary 
Sixth Edition as under:- 
“Custom is the best interpreter of the law” 
81. 
Discussing this legal principle as a rule of construction in 
the case of Sheppard v. Gosnold (1672 Vangham 159, P-169), 
Const. Petition No.127 of 2012 
133 
Vaughan, C.J. observed that where the penning of a statute is 
dubious, long usage is just a medium to expound it by; for jus et 
norma loquondi is governed by usage, and the meaning of things 
spoken or written must be as it hath constantly been received to be 
by common acceptation. General usage under a statue may make 
for a practical construction of it which will be accorded great 
consideration by the courts. General usage, of long duration 
therefore unquestioned, will frequently be of great assistance in the 
search of legislative meaning. The meaning publicly given by 
contemporary or long professional usage, is presumed to be a true 
one, even when the language has etymologically or popularly a 
different meaning. It is obvious that the language of a statute must 
be understood in the sense in which it was understood when it was 
passed, and those who lived at or near the time when it was 
passed, may reasonably be supposed to be better acquainted than 
their 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 and 
Grindlays Bank Ltd. v. Municipal Corporation for Greater Bombay 
(AIR 1969 SC 1048) and also from the judgment of this Court in 
the case of Asad Ali (supra), which lays down as under:- 
“95. ……..a constitutional convention once established has the 
same 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 the 
interpretation of Constitutional provisions than in the case of 
written 
Constitution. 
Therefore, 
while 
explaining 
the 
Constitutional provision of a written Constitution on the basis of 
a convention, it must be shown that either a convention has 
developed with the passage of time side by side with the 
enforcement and interpretation of the Constitution or a 
convention already existing on the date of enforcement of a 
written Constitution, has either received a statutory, recognition 
Const. Petition No.127 of 2012 
134 
in the Constitutional document or has been established as a 
Constitutional convention on account of conscious and deliberate 
obedience of the convention by those who are charged with the 
duty of interpreting or enforcing the Constitution. Therefore, 
when an already existing convention is followed in interpreting a 
provision of a written Constitution consistently and consciously 
over a length of time by those who are responsible under the 
Constitutional mandate to interpret and enforce the said 
provision of Constitution, the convention is established as a 
Constitutional convention and any breach thereof may be treated 
by the Courts as a breach of the provision of the Constitution to 
which the convention relates. …..” 
82. 
Indeed, right to pension of every honourable retired Judge 
of the High Court in our country is to be determined strictly in line 
with applicable Article 205, its Fifth Schedule read with applicable 
P.O No.9 of 1970 or P.O. No.3 of 1997, but for our better 
understanding, we have also attempted to further divulge into the 
question of condition of minimum length of service for honourable 
retired Judges of High Court as one of the basic requirement to 
earn the right to pension. For this purpose, we have over seen 
some relevant Constitutional and statutory provisions in force on 
this subject in the neighbouring countries, India, Bangladesh and 
Sri Lanka, which are in substance pari materia to ours and noticed 
that in each of these countries without any exception there is 
requirement of length of service of minimum five years or more for 
acquiring such right as a retired Judge of the High Court, while in 
some other countries it is stretched upto 10/12 years, and this 
long standing convention, having the force of law, is being 
religiously adhered to.  
83. 
In so far as the arguments of Rana M. Shamim, learned 
ASC who represented honourable retired Justice Dr. Ghous 
Muhammad and Mr. Afzal Siddiqui, learned ASC who represented 
honourable retired Justice Syed Najmul Hassan Kazmi, with 
Const. Petition No.127 of 2012 
135 
reference to Article 270AA 3(b) of the Constitution, are concerned, 
we find much force in their contentions that they shall be deemed to 
have retired on attaining their respective age of superannuation and 
as such both of them have completed minimum five years actual 
service to their credit as Judge of the High Court, which has made 
them entitled for the benefit of pension irrespective of the judgment 
under challenge. Thus, for this purpose, they have their own 
entitlement 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 the 
definition of “Judge” as defined under Article 260(1)(c) of the 
Constitution, are equally entitled for right to pension like 
permanent judges of the High Court, have much force as at one 
place the definition of ‘Judge’ in the above referred Article of the 
Constitution clearly defines that in relation to the High Court, a 
person who is an Additional Judge of the High Court, is also 
included in the definition of a Judge and at the other place under 
Article 197 of the Constitution, relating to appointment of 
Additional Judges also, no discrimination is identified for the 
purpose of holding them disentitled for right to pension like any 
permanent judge of the High Court, who, in terms of Article 195 of 
the Constitution, will retire on attaining the age of 62 years, unless 
he resigns sooner or removed from the office in accordance with 
the Constitution. It will be also pertinent to mention here that 
under paragraph-2 of the President’s Order 3 of 1997, “Additional 
Judge” and “Judge” of the High Court have been separately defined 
as under:- 
“2(c) 
“Additional Judge” means a Judge appointed by the 
President to be an Additional Judge.” 
Const. Petition No.127 of 2012 
136 
“2(f) 
“Judge” means a Judge of High Court and include the 
Chief Justice, and Acting Chief Justice and an Additional 
Judge.” 
From the reading of above two definitions, again it is clear that 
definition of a Judge of the High Court also includes additional 
judge, therefore, no exception could be taken in determination of 
his right to pension for the reason that he has not yet been 
appointed as permanent judge of the High Court in terms of Article 
193 of the Constitution. Another added reason in support of this 
conclusion emerges from the combined reading of paragraph-2 of 
the Fifth Schedule to Article 205 of the Constitution, speaking 
about “every judge”, and the definitions of “judge” under Article 
260(1)(c)(b) of the Constitution and paragraph-2(f) of President’s 
Order 3 of 1997, which leave no room for exclusion of “Additional 
Judge” from the category of “every judge” within the meaning of 
paragraph-2 (ibid). However, it is necessary to state and clarify 
here that in such eventuality, for claiming right to pension a 
retired judge of the High Court “additional judge” will also have to 
have minimum five years actual service to this credit. 
85. 
In view of the foregoing discussion, we find that 
Additional Judge of the High Court will be entitled for equal 
treatment like a permanent Judge of the High Court for his right to 
pension, but subject to subsisting determination of such right by 
the President in terms of Article 205, read with Fifth Schedule of 
the Constitution and the applicable President’s Order. 
86. 
When we go into further details of this litigation, which 
earlier ended up in the form of judgment under challenge, we find 
that on 19.10.1994, retired Justice Ahmed Ali U. Qureshi, who had 
initially joined Sindh Judiciary on 11.6.1953 as sub-Judge, 
Const. Petition No.127 of 2012 
137 
thereafter elevated as Additional Judge of the High Court of Sindh 
in July, 1985, wherefrom he retired on 25.10.1988, after rendering 
actual service in that capacity for a period of three years and four 
months approximately, upon his retirement was found entitled for 
pension at the rate of Rs.4,200/- per month, as retired District 
Judge. The payment of this pension amount was in addition to a 
sum of Rs.2,100/- as cost of living allowance payable to a judge of 
the High Court under paragraph 16-B of the President’s Order 9 of 
1970, as amended by President’s Order 5 of 1988. The pension of 
the petitioner was revised from time to time, but when the 
petitioner approached the Accountant General Sindh, Karachi to 
avail the benefit of President’s Order 2 of 1993, he was denied such 
benefit on the ground that since he had not put up minimum five 
years actual service as Judge of the High Court, therefore, he was 
not entitled for its benefit. 
87. 
In the above discussed background, in order to avail the 
benefit of President’s Order 2 of 1993, the petitioner had brought 
the said petition before the High Court in person with the following 
prayers:- 
“a) 
To declare the P.O. 9 of the 1970 so far its provision in 
Part III with regard to pension are repugnant to the 
Constitution of the Islamic Republic of Pakistan are void. 
b) 
To order the Respondents to pay the Petitioner maximum 
pension payable to a Judge of the High Court under P.O. 2 
of 1993 alongwith arrears or in alternative. 
e) 
To order the Respondents to fix the pension of the 
Petitioner at Rs.8,190/- per month admissible to him as 
Civil Servant, add to it increments in pension allowed from 
time to time and pay all the arrears alongwith markup for 
the period this amount is illegally retained by Respondent 
No.4.” 
88. 
This petition was strongly resisted by the respondents on 
various legal grounds regarding disentitlement of the petitioner, 
Const. Petition No.127 of 2012 
138 
however, narration of facts was not disputed. It was in this 
background of the litigation that learned Division Bench of the 
High Court of Sindh, wherein one of its member was Justice Ms. 
Majida Rizvi (as she then was), delivered its judgment in the 
following terms. 
“11. 
In the result, the petition is allowed and the respondents 
are liable to fix the petitioner’s pension at the maximum pension 
as allowed under President’s Order No.2 of 1993. The parties are 
left to bear their own costs.” 
89. 
A perusal of this judgment of the High Court of Sindh 
dated 08.2.1995, which was subsequently impugned before the 
apex Court in the earlier proceedings, reveals that the main ground 
which found favour for grant of such relief to the petitioner was the 
principle laid down in the case of I.A Sharwani v. Government of 
Pakistan (1991 SCMR 1041) was attracted, operative part whereof 
reads as under:- 
“9. 
We are, consequently, of the view that rights and privileges 
admissible to the petitioner in respect of his pension are now governed 
under President’s Order No.2 of 1993. As has been held by the Supreme 
Court in I.A. Sharwani’s case, instruments such as P.O. 2 of 1993 are 
constitutional instruments, therefore, full effect must be given to them. 
We, therefore, find no force in the contentions raised on behalf of the 
respondents. Learned Standing Counsel has also adopted the arguments 
advanced by the learned A.A.G. but as we have just pointed out, we are 
unable to agree with his contentions. 
10. 
Although, it has also been contended by the petitioner in the 
alternative that, in any case, he is entitled to a pension of Rs.8,190 in 
accordance with the Civil Servants Rules, but since we have accepted his 
plea that P.O. 2 of 1993 is applicable to the petitioner, it is not necessary 
for us to consider the second contention of the petitioner. However, it will 
always be open for the petitioner to take such a plea in the future if the 
circumstances so require.” 
90. 
After scanning the whole record in this case, we are 
somewhat surprised to see that nowhere in the judgment dated 
08.2.1995, which was subsequently challenged by the Accountant 
General Sindh before the apex Court, question of entitlement of 
Const. Petition No.127 of 2012 
139 
pension to every judge of the High Court, irrespective of his length 
of service, was involved or decided by the High Court, rather, it 
was held that at the time of retirement of the petitioner from 
service as Judge of the High Court, the rights and privileges as to 
his pension had not yet been determined by the President in 
pursuance of paragraph 2 of the Fifth Schedule, but as was 
provided by said paragraph, till such rights and privileges were 
determined by the President, a Judge of the High Court was 
entitled to such privileges, allowances and rights, to which he was 
entitled immediately before the commencing day, while such day 
has been specified by Article 265 of the Constitution as the 14th 
day of August, 1973. In our opinion, remaining oblivious of all 
these legal and factual deficiencies and the limited scope of appeal 
against the impugned judgment, floating on the surface of record, 
is yet another strong ground to justify declaring the judgment 
under challenge per incuriam. 
91. 
At the cost of repetition, it will be worthwhile to reproduce 
here paragraph-2 of Fifth Schedule to Article 205 of the 
Constitution as all along it has been the center point of arguments 
advanced in this case on behalf of honourable retired judges of the 
High Court etc, who have been the beneficiary of the judgment 
under challenge.  
“FIFTH SCHEDULE  
[Article 205] 
Remuneration and Terms and Conditions of Service of Judges. 
THE SUPREME COURT 
…………………………………………………………………………………… 
THE HIGH COURT 
1.  
………………………………………………………………………….  
2. Every Judge of a High Court shall be entitled to such privileges 
and allowances, and to such rights in respect of leave of absence 
Const. Petition No.127 of 2012 
140 
and pension, as may be determined by the President, and until so 
determined, to the privileges, allowances and rights, to which, 
immediately before the commencing day, the Judges of the High 
Court were entitled” 
In the first place, simple reading of this paragraph alongwith 
corresponding language of Article 221 of the Government of India 
Act, 1935; relevant paragraph of the High Court Judges Order, 
1937; Article 221(2) of the Constitution of India, 1949 (pre 54th 
amendment and post 54th amendment); paragraph 4(2) relating to 
High Court Judges in the Third Schedule to the Constitution of 
Islamic Republic of Pakistan, 1956; Article 124 read with 
paragraph-2 of the Second Schedule to the Constitution of Islamic 
Republic of Pakistan, 1962, relating to High Court; and above 
reproduced paragraph-2 of the Fifth Schedule to Article 205 of the 
Constitution of 1973, read with President’s Order 9 of 1970 or 
President’s Order 3 of 1997, leads us to an irresistible conclusion 
that these provisions for the purpose of determination of right to 
pension of the honourable retired judges of the High Court are 
“pari materia” for all intent and purposes. In this background when 
we proceed further to look into the language of the High Court 
Judges Order, 1937, President’s Order 9 of 1970 and President’s 
Order 3 of 1997, we find no ambiguity at all that the 
determination, as to the right to pension required to be made by 
the President under the Constitution, was made from time to time 
for every judge of the High Court. Therefore, to say that 
determination of right to pension for the honourable retired judges 
of the High Court, who have rendered less than five years actual 
service is yet to be made is absolutely fallacious and misconceived. 
This view of the matter gains further support from the fact that the 
determination of right to pension to be made on each occasion, 
Const. Petition No.127 of 2012 
141 
was to be made for every judge of the High Court at one go and not 
in piecemeal; and this is what exactly through all these 
instruments his Majesty in Council and the President have done in 
unequivocal 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 and 
President’s Order 3 of 1997 in sequence also reveals that such 
determination of “right to pension” of “every judge” of the High 
Court was always made and continued without break since 1937 
uptill today.  
92. 
To add force to the above interpretation of paragraph 2 of 
the Fifth Schedule to Article 205 of the Constitution, we also cannot 
overlook two maxims of similar nature “Expressum Facit Cessare 
Tacitum” meaning thereby that “what is expressed makes what is 
implied to cease”, and “expressio unis est exclusio alterius” 
meaning thereby that “the express mention of one thing implies the 
exclusion of another”. Thus, where a statute contains express 
covenants or mention of things and contingencies no other 
implication of any covenant or contingency on the same subject 
matter can be raised. In other words, where the legislature 
postulates and specifies some thing for some category of persons 
only, it, inline with these maxims, impliedly exclude others. Indeed, 
the principle propounded in these two maxims, in certain 
situations, can have dangerous repercussions, therefore, it is to be 
applied with extra care and caution, but in the present case, there is 
absolutely no dispute or denial of the fact that right from the year 
1937, while exercising powers, his Majesty in Council or the 
Const. Petition No.127 of 2012 
142 
President, as the case may be, have from time to time laid down 
the criteria for entitlement of pensionary benefits for every retired 
judge of the High Court, and for this purpose, the relevant 
provisions of Judges Order 1937 or two President’s Order, which 
are “pari materia”, give a clear meaning of exclusion from the 
entitlement of pensionary benefits, all those honourable retired 
judges of the High  Court, who have, under the order of 1937 or 
President’s Orders 9 of 1970 and 3 of 1997, not completed 
minimum twelive/five years actual service to earn right to pension. 
A reading of paragraph 2 and 3 in any manner, conjunctive or 
disjunctive, makes it abundantly clear that the President at the time 
of determination of right to pension for a retiring honourable judge 
of the High Court has made not less than five years actual service 
as bottom line for his entitlement/right to pension with full intent 
and, thus, excluded all those who have not met this minimum 
threshold of actual service. But in some cases subject to other 
prescribed and applicable provisions like proviso to paragraph-13(c) 
of President’s Order No.9 of 1970 or paragraph 29 of the President’s 
Order 3 of 1997, read with S.R No.423 (ibid), relating to automatic 
or otherwise addition of certain period in it to make up deficiency in 
hardship cases.  The arguments advanced by some of the learned 
ASCs that Fifth Schedule to Article 205 of the Constitution is a sub-
constitutional legislation, 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 to 
determine conferred to the President under paragraph 2 (ibid) is not 
a right limited to the extent of determination of quantum of pension 
for every judge, but in the first place, President has to determine the 
criteria for honourable retired judge of the High Court to earn right 
Const. Petition No.127 of 2012 
143 
to pension, which exercise has been already undertaken explicitly 
and in unambiguous terms in both the earlier President’s Order 9 of 
1970 and President’s Order 3 of 1997 (reproduced above). To put it 
in other words, it is the President who has been exclusively 
delegated with the power, in the first place to determine the 
entitlement/right to pension of every honourable retired judge of the 
High Court; and, in the second place, to determine the quantum of 
such pensionary benefit, which exercise has been repeatedly 
undertaken by him in very clear terms. While discussing the issue 
relating to entitlement of pensionary benefits of honourable retired 
judges of the High Court, having less than five years service, another 
strong ground which has emerged for our consideration from 
admitted facts, and carries force of convention/usage is that learned 
ASCs addressing the Court despite specific suggestions to this effect, 
could not cite a single instance from the Sub-continent where the 
honourable retired judges of the High Court, having rendered less 
than the minimum required period of actual service, envisaged as 
condition for entitlement for right to pension under the High Court 
Judges Order 1937, President’s Order 9 of 1970 or President’s 
Order 3 of 1997, ever claimed or got pension on the basis of 
interpretation of paragraph 2 and 3 read with applicable President’s 
Order in the manner as erroneously interpreted in the judgment 
under challenge. We, therefore, have no hesitation to hold that for 
the preceding reasons and further reasons to be recorded 
hereinafter, the judgment under challenge falls in the category of 
per incuriam and makes it without jurisdiction and nullity in the 
eyes of law, as if it never existed at all. 
93. 
After having answered the first two moot points, when we 
come to the last point relating to the fate of pensionary benefits 
Const. Petition No.127 of 2012 
144 
already availed by the honourable retired judges of the High Court, 
though having less than five years actual service to their credit, on 
the basis of the judgment under challenge, we deem it proper that 
before undertaking any further discussion in this regard, to 
prepare a statement in the form of a chart, containing the relevant 
dates and financial repercussions, as noted hereunder. 
Calculation/Statement of Accounts pertaining to Pension of 
Hon'ble Judges of High Courts 
Lahore High Court 
 
 
 
 
 
S.No. 
Name of Hon'ble Judge/ or 
widows of Hon'ble Judges 
Date of 
retirement/ 
resignation/ 
removal 
Actual 
Length of 
Service  
(Y-M-D) 
Total Pension 
Drawn 
including 
Commutation 
Per month 
Pension 
Annual 
Pension 
Amount 
1 
Mr. Justice (Retd) Abdul 
Ghafoor Khan Lodhi 
1-Jul-81 
04-05-20 
24,907,339 
- 
- 
2 
Mr. Justice (Retd) Mian 
Ghulam Ahmad 
2-Feb-95 
02-05-04 
26,845,284 
515,652 
6,187,824 
3 
Mr. Justice (Retd) Sh. Abdul 
Mannan 
6-Nov-95 
03-02-06 
25,850,871 
550,422 
6,605,064 
4 
Mr. Justice (Retd) Rana 
Muhammad Arshad Khan 
1-Oct-96 
02-01-23 
25,281,378 
535,133 
6,421,596 
5 
Mr. Justice (Retd) Ch. Mushtaq 
Ahmad Khan 
1-Oct-96 
04-01-23 
24,386,404 
528,002 
6,336,024 
6 
Mr. Justice (Retd) Khan Riaz-
ud-Din Ahmad 
1-Jan-98 
03-02-23 
23,275,729 
533,944 
6,407,328 
7 
Mr. Justice (Retd) Muhammad 
Aqil Mirza 
4-Apr-97 
02-07-26 
24,048,779 
528,002 
6,336,024 
8 
Mr. Justice (Retd) Abdul 
Hafeez Cheema 
1-Oct-97 
03-01-23 
28,802,381 
610,287 
7,323,444 
9 
Mr. Justice (Retd) Ghulam 
Sarwar Sh. 
10-Dec-98 
02-00-00 
25,986,075 
594,663 
7,135,956 
10 
Mr. Justice (Retd) Syed Sharif 
Hussain Bukhari 
15-Jun-98 
03-10-07 
24,615,969 
527,950 
6,335,400 
11 
Mr. Justice (Retd) Muhammad 
Islam Bhatti 
22-Dec-98 
03-02-11 
26,184,753 
608,654 
7,303,848 
12 
Mr. Justice (Retd) Rao Iqbal 
Ahmad Khan 
12-Jan-99 
02-01-00 
24,793,480 
519,535 
6,234,420 
13 
Mr. Justice (Retd) Mian Saeed 
ur Rehman Furrukh 
1-Aug-98 
03-06-12 
24,392,330 
527,950 
6,335,400 
14 
Mr. Justice (Retd) Sh. Amjad 
Ali 
22-Jun-99 
02-06-11 
24,233,654 
608,654 
7,303,848 
15 
Mst. Shahida Khurshid w/o Mr. 
Justice (Retd) Raja Muhammad 
Khurshid 
24-Aug-99 
03-10-13 
13,662,023 
297,012 
3,564,144 
16 
Mr. Justice (Retd) Syed Najam 
ul Hassan Kazami 
27-Jan-00 
02-07-29 
24,027,865 
519,172 
6,230,064 
17 
Mr. Justice (Retd) Iftikhar 
Ahmad Cheema 
1-Jul-01 
02-07-07 
29,708,666 
441,273 
5,295,276 
18 
Mr. Justice (Retd) Dr. Munir 
Ahmad Mughal 
7-Jul-01 
04-06-26 
26,364,853 
594,023 
7,128,276 
19 
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 
145 
20 
Mr. Justice (Retd) Ghulam 
Mahmood Qureshi 
8-Oct-01 
04-04-10 
23,119,482 
519,172 
6,230,064 
21 
Mr. Justice (Retd) Mansoor 
Ahmad 
7-Mar-04 
03-02-04 
22,601,149 
510,436 
6,125,232 
22 
Mr. Justice (Retd) Pervaiz 
Ahmad 
10-Apr-04 
02-01-05 
26,222,120 
583,356 
7,000,272 
23 
Mr. Justice (Retd) Farrukh Latif 
10-Jun-05 
03-03-05 
23,143,378 
606,077 
7,272,924 
24 
Mr. Justice (Retd) Rustam Ali 
Malik 
10-Sep-05 
03-06-05 
23,605,888 
574,113 
6,889,356 
25 
Mr. Justice (Retd) Sh. Abdul 
Rashid 
1-Jun-06 
02-08-28 
22,297,141 
571,932 
6,863,184 
26 
Mst. Parveen Nawaz w/o Mr. 
Justice (Retd) Muhammad 
Nawaz Bhatti 
11-Jul-06 
01-07-10 
13,343,486 
267,566 
3,210,792 
27 
Mr. Justice (Retd) Muhammad 
Jahangir Arshad 
4-Nov-07 
02-11-02 
20,578,426 
488,459 
5,861,508 
28 
Mr. Justice (Retd) Sh. Javaid 
Sarfraz 
13-Feb-08 
03-02-11 
22,760,620 
488,460 
5,861,520 
29 
Mr. Justice (Retd) Muhammad 
Muzammal Khan 
29-Feb-08 
04-05-27 
22,096,799 
488,459 
5,861,508 
30 
Mr. Justice (Retd) Tariq 
Shamim 
12-Oct-09 
03-07-10 
26,598,475 
440,299 
5,283,588 
31 
Mr. Justice (Retd) Fazal-e-
Miran Chowhan 
11-Oct-09 
04-10-09 
24,587,585 
440,299 
5,283,588 
32 
Mr. Justice (Retd) Syed Asghar 
Haider 
12-Oct-09 
03-07-09 
29,458,843 
440,299 
5,283,588 
33 
Mr. Justice (Retd) Sh. Ahmad 
Farooq 
10-Feb-12 
01-11-20 
26,826,640 
436,235 
5,234,820 
34 
Mr. Justice (Retd) Ch. Shahid 
Saeed 
3-Oct-12 
02-07-13 
24,480,676 
364,567 
4,374,804 
35 
Mst. Shahnaz Ansari w/o Mr. 
Justice (Retd) Tanveer Bashir 
Ansari 
26-Jun-05 
04-01-few 
9,102,366 
188,768 
2,265,216 
36 
Mr. Justice (Retd) Sagheer 
Ahmad Qadri 
11-Feb-13 
03-04-26 
26,174,540 
416,649 
4,999,788 
Sub-Total (Lahore High Court) 
858,135,924 
17,384,647 
208,615,764 
Peshawar High Court 
 
 
 
 
 
S.No. 
Name of Hon'ble Judge/ or 
widows of Hon'ble Judges 
Date of 
retirement/ 
resignation/ 
removal 
Actual 
Length of 
Service  
(Y-M-D) 
Total Pension 
Drawn 
including 
Commutation 
Per month 
Pension 
Annual 
Pension 
Amount 
1 
Widow of late Justice (Retd) 
Sher Bahadar Khan 
1-Jun-94 
03-8-14 
7,919,104 
256,277 
3,075,324 
2 
Mr. Justice (Retd) Raza Ahmad 
Khan 
6-Mar-92 
03-5-04 
25,648,302 
535,132 
6,421,584 
3 
Mr. Justice (Retd) Muhammad 
Khiyar Khan 
18-Nov-94 
04-00-13 
14,269,686 
267,566 
3,210,792 
4 
Mr. Justice (Retd) Shah Abdur 
Rashid 
2-Dec-84 
04-07-05 
23,111,683 
535,710 
6,428,520 
5 
Mr. Justice (Retd) Salim Khan 
1-Jan-08 
02-11-28 
23,740,207 
407,359 
4,888,308 
6 
Mr. Justice (Retd) Abdul Aziz 
Kundi 
1-Jan-11 
01-3-24 
36,132,633 
331,918 
3,983,016 
7 
Mr. Justice (Retd) Hamid 
Farooq Durrani 
3-Nov-09 
03-06-28 
39,701,383 
321,762 
3,861,144 
8 
Mr. Justice (Retd) Muhammad 
Azam Khan 
27-Jan-00 
01-07-14 
23,818,108 
519,172 
6,230,064 
Const. Petition No.127 of 2012 
146 
9 
Mr. Justice (Retd) Fazal-ur-
Rehman 
1-Mar-07 
04-05-18 
18,513,679 
208,667 
2,504,004 
10 
Mr. Justice (Retd) Salim Dil 
Khan 
1-Oct-96 
02-09-16 
13,599,009 
260,437 
3,125,244 
11 
Mr. Justice (Retd) Muhammad 
Raza Khan 
8-Aug-08 
03-07-04 
26,189,176 
481,828 
5,781,936 
12 
Mr. Justice (Retd) Attaullah 
Khan 
4-Jun-12 
02-08-26 
36,224,227 
311,595 
3,739,140 
13 
Mr. Justice (Retd) Muhammad 
Daud Khan 
1-Jan-82 
04-11-11 
17,510,692 
267,566 
3,210,792 
14 
Mr. Justice (Retd) Said Maroof 
Khan 
2-Nov-09 
03-06-29 
30,864,089 
399,655 
4,795,860 
15 
Mr. Justice (Retd) Raj 
Muhammad Khan 
15-May-08 
02-01-11 
24,930,879 
390,558 
4,686,696 
16 
Mr. Justice (Retd) Abdur 
Rehman Khan Kaif 
27-Jul-91 
03-07-08 
11,782,192 
225,794 
2,709,528 
17 
Mr. Justice (Retd) Qazi Hamid 
ud Din 
11-Oct-96 
02-08-26 
23,587,385 
456,045 
5,472,540 
18 
Mr. Justice (Retd) Miftah-ud-
Din Khan 
 
03-05-05 
 
0 
 
Sub-Total (Peshawar High Court) 
397,542,434 
6,177,041 
74,124,492 
Balochistan High Court 
 
 
 
 
 
S.No. 
Name of Hon'ble Judge/ or 
widows of Hon'ble Judges 
Date of 
retirement/ 
resignation/ 
removal 
Actual 
Length of 
Service  
(Y-M-D) 
Total Pension 
Drawn 
including 
Commutation 
Per month 
Pension 
Annual 
Pension 
Amount 
1 
Mr. Justice (Retd) Tariq 
Mehmood 
17-Apr-02 
01-07-04 
22,186,772 
489,133 
5,869,596 
2. 
Mr. Justice (Retd) Mehta 
Kelash Nath Kohli 
25.8.2009 
04-08-10 
23,979,696 
519,536 
6,234,432 
 
Sub-Total (Balochistan High Court) 
46,166,468 
1,008,669 
12,104,028 
Sindh High Court 
 
 
 
 
 
S.No. 
Name of Hon'ble Judge/ 
widows of Hon'ble Judges 
Date of 
retirement/ 
resignation/ 
removal 
Actual 
Length of 
Service  
(Y-M-D) 
Total Pension 
Drawn 
including 
Commutation 
Per month 
Pension 
Annual 
Pension 
Amount 
1 
Mr. Justice (Retd) Ghulam 
Muhammad Kourejo 
31-Jul-82 
02-02-14 
22,807,356 
350,546 
4,206,552 
2 
Mr. Justice (Retd) Munawar Ali 
Khan 
19-Jun-86 
04-06-12 
22,546,187 
350,546 
4,206,552 
3 
Mr. Justice (Retd) Muhammad 
Aslam Arain 
11-May-95 
04-06-00 
24,750,995 
457,234 
5,486,808 
4 
Mr. Justice (Retd) Majida Rizvi 
18-Jan-99 
04-07-12 
23,635,293 
441,274 
5,295,288 
5 
Mr. Justice (Retd) Dr. Ghous 
Muhammad 
26-Jan-00 
04-09-16 
23,675,698 
441,273 
5,295,276 
6 
Mr. Justice (Retd) Amanullah 
Abbasi 
4-Mar-00 
04-11-23 
23,552,083 
441,274 
5,295,288 
7 
Mr. Justice (Retd) Abdul Ghani 
Sheikh 
11-Nov-00 
03-00-13 
24,156,529 
519,173 
6,230,076 
8 
Mr. Justice (Retd) S.A. Rabbani 
5-Jun-02 
03-01-16 
26,034,663 
515,350 
6,184,200 
9 
Mr. Justice (Retd) M. Sadiq 
Leghari 
30-Jun-06 
03-10-03 
25,118,860 
502,245 
6,026,940 
10 
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 
147 
11 
Mr. Justice (Retd) Nadeem 
Azher Siddiqui 
11-Oct-09 
03-11-16 
29,358,946 
362,400 
4,348,800 
12 
Mr. Justice (Retd) Munib 
Ahmed Khan 
11-Oct-09 
03-11-16 
22,790,717 
414,172 
4,970,064 
13 
Mr. Justice (Retd) Ali Sain Dino 
Metlo 
11-Oct-09 
03-11-16 
27,786,518 
414,172 
4,970,064 
14 
Mr. Justice (Retd) Shahid 
Anwar Bajwa 
4-Oct-12 
03-00-19 
20,440,437 
303,806 
3,645,672 
Sub-Total (Sindh High Court) 
345,285,330 
6,016,664 
72,199,968 
 
 
 
 
 
 
 
 
Grand 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 from 
the case record and the statement of accounts furnished before this Court by the office of 
Accountant Generals of all the four Provinces, thus, any reference to above chart in this judgment 
shall not be deemed as final adjudication as regards facts and figures incorporated therein.) 
94. 
Now taking up the issue of applicability and effect of this 
judgment after the implementation of judgment under challenge, 
so as to see whether it should have prospective or retrospective 
applicability, the first thing to be noted is that in our short order 
dated 11.4.2013 we have declared that the law enunciated in the 
judgment under challenge is “per incuriam”. The fallout of such 
declaration is that it is a judgment without jurisdiction, thus, for 
all intent and purposes not to be quoted as precedent, rather liable 
to be ignored. A useful discussion on the concept and import of 
“per incuriam” finds place in the case of Sindh High Court Bar 
Association (supra), which reads as under:- 
“(ii)  
MAXIM "PER INCURIUM". 
 37.  
`Incuria' literally means "carelessness". In practice per incurium 
is taken to mean per ignoratium and ignored if it is rendered in 
ignoratium of a statute or other binding authority.   
 38.  
What is mean by giving a decision per incurium is giving a 
decision when a case or a statute has not been brought to the attention 
of the court and they have given the decision in ignorance or 
forgetfulness of the existence of that case or that statute or forgetfulness 
of some inconsistent statutory provision or of some authority binding on 
the court, so that in such cases some part of the decision or some step in 
the reasoning on which it was based was on that account demonstrably 
wrong, so that in such like cases, some part of the decision, or some step 
in the reasoning on which it is based, is found, on that account to be 
Const. Petition No.127 of 2012 
148 
demonstrably wrong. See Nirmal Jeet Kaur's case {2004 SCC 558 at 565 
para 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 (LR 
1955 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 at 
page 294} and Morelle Ltd.'s case {AELR 1955 (1) 708). 
39.  
The ratio of the aforesaid judgments is that once the Court has 
come to the conclusion that judgment was delivered per-incurium then 
Court is not bound to follow such decision on the well known principle 
that the judgment itself is without jurisdiction and per-incurium, 
therefore, it deserves to be over-ruled at the earliest opportunity. In such 
situation, it is the duty and obligation of the apex Court to rectify it. The 
law has to be developed gradually by the interpretation of the 
Constitution then it will effect the whole nation, therefore, this Court, as 
mentioned above, is bound to review such judgments to put the nation 
on the right path as it is the duty and, obligation of the Court in view of 
Article 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 no 
two views about the powers of legislature to legislate any law and 
to make it applicable prospectively or retrospectively or from any 
particular date, with clear/express intendment in this regard. 
However the procedural law, even though not expressly provided 
for, normally holds its applicability retrospectively as no one can 
claim vested right in the matter of procedure. There are number of 
precedents where the law has been so legislated or amended and 
made applicable retrospectively to destroy the vested rights of 
certain individuals and such actions when challenged, have been 
upheld by the Court, to be legal. If any case law is needed to fortify 
this view, reference can be made to the case of Asad Ali (supra) as 
under:- 
“135.  It is a well-settled law that a new or an amending statute 
touching the, vested rights of the parties operates prospectively 
unless the language of the legislation expressly provides for its 
retrospective operation. However, the presumption against the 
retrospective operation of a statute is not applicable to statutes 
dealing with the procedure as no vested right can be claimed by 
any party in respect of a procedure. The only exception to the 
Const. Petition No.127 of 2012 
149 
retrospective operation of a procedure law is that if by giving it a 
retrospective operation, the vested right of a party is impaired 
then to that extent it operates prospectively. The above principles 
applicable to a new or an amending statute, however, cannot be 
applied strictly to the law declared by the Courts through 
interpretative process. The Courts while interpreting a law do not 
legislate or create any new law or amend the existing law. By 
interpreting the law, the Courts only declare the true meaning of 
the law which already existed. Therefore, to that extent the law 
declared by the Court is applicable from the date the law is 
enacted. However, as under the Constitution only the decision- of 
this Court on a question of law or in so far it enunciates a 
principle of law is binding on all Courts, and Authorities, the 
possibility that a provision of law or Constitution before it came 
up for interpretation before this Court, was interpreted or 
understood differently could not be ruled out. Therefore, if as a 
result of interpretation of a law or a Constitutional provision by 
this Court, the existing interpretation or meaning of the law is 
changed, then it is more of a matter of public policy based on 
justice, equity and good conscious than a rule of law, that an 
innocent person who acting bona fidely on the prevailing 
interpretation or meaning of law created a liability or acquired a 
right, be protected against the change brought about in the 
existing state of law as a result of its interpretation by this Court. 
However, where a person or authority acts in defiance of a clear 
provision of law or Constitution or the interpretation by the Court 
does not have the effect of changing the prevailing understanding 
of the meaning of the provision of law or the Constitution, the 
question of, protecting any one against the effect of such 
interpretation by the Court on the principle that the effect of 
interpretation by given prospective operation, does not arise. For 
example, if a particular provision of law or the Constitution has 
not come up for interpretation before any Court and the 
functionaries responsible for giving effect to it have consistently 
interpreted the said provision and understood it in a particular 
scene and acted upon it accordingly over a length of time, but all 
of a sudden the functionaries decide to follow a new practice by 
changing the interpretation of that provision. However, when the 
matter is brought before the Court, the solitary deviation by the 
functionaries made on the basis of changed interpretation is 
struck down by the Court as illegal and unconstitutional and the 
previous interpretation and practice followed by the functionaries 
is upheld being in accordance with the law and Constitution. In 
that event, neither the functionaries nor the person deriving any 
benefit on the basis of the new practice founded on the changed 
interpretation of the provision of law or the Constitution could 
Const. Petition No.127 of 2012 
150 
defend the illegality or unconstitutionality of the action on the 
principle that the interpretation given by the Courts be applied 
prospectively and not retrospectively, as in such a case the Court 
is striking down the very first deviation of the functionaries on the 
ground 
that 
the 
deviation 
from 
the 
previous 
practice/ 
interpretation is illegal and unconstitutional. The principle that 
the change in the state of law as a result of interpretation by this 
Court is to be given effect to from the date the Court interpreted 
the law is also not applicable in those cases which could be 
brought under challenge in accordance with the law before or 
after the interpretation of the provision by this Court. Even 
otherwise, as pointed out by us earlier, this Court while adopting 
an interpretation of the provision of the law or the Constitution 
which is at variance from the existing view, it is only declaring the 
correct law as an apex Court. By doing so, it neither legislates any 
new law nor amends the existing law. Therefore, while 
interpreting a provision of law or the Constitution, this Court can 
also provide the date from which the interpretation given by it is 
to come into effect, keeping in view the nature of the provision it 
is interpreting, the likelihood of possible prejudice which may be 
caused to an individual or a body of individual and the 
requirement of justice in the case.” 
[Also see: Golak Nath v. State of Punjab (AIR 1967 SC 1643) and 
Messrs Haider Automobile Ltd v. Pakistan (PLD 1969 SC 623)] 
96. 
Similarly, depending upon the facts and circumstances of 
a case, the Supreme Court, having vast powers, while delivering its 
judgment or making an order can lay down the parameters for its 
implementation 
including 
the 
option 
of 
its 
retrospective 
applicability from any particular date, so as to make sure its 
effective fallout, as the situation in a particular case may demand. 
For doing so, one of the underlining principle is “Actus Curiae 
Neminem Gravabit” (an act of the Court shall prejudice no man). 
As, no body should suffer due to any act, omission or mistake of 
the Court. Similarly no body should take undue advantage or 
benefit of any act, omission, mistake or legal error committed by 
the Court and to avoid adverse effect of such judgment, powers are 
to be exercised by the Court in the manner to save it from 
Const. Petition No.127 of 2012 
151 
becoming an abuse of the process of law. In the present 
proceedings as highlighted earlier, due to judgment under 
challenge public exchequer has been unjustly burdened with the 
liability of Rs.1,647,130,156/-,besides additional payment of 
Rs.32,604,359/- towards monthly pension, thus, in all fairness 
such mistake of law is to be cured in a manner to repair such huge 
financial loss to the public exchequer. 
97. 
While discussing the fallout of the judgment under 
challenge having been declared per incurium, we find that this 
Court, in exercise of its jurisdiction under Articles 184(3), 187 and 
188 of the Constitution, in order to do complete justice and stick to 
the norms of equity and fair play is not denuded of its powers to 
order implementation of this judgment retrospectively from the 
date of the judgment under challenge. Dilating further upon the 
maxim “Actus Curiae Neminem Gravabit” (an act of the Court 
shall prejudice no man), we find that concept of “ prejudice no 
man” visualized in it, includes not only individual parties before 
the Court but also any juristic person such as corporations, banks, 
government 
functionaries, 
including 
Federal 
or 
Provincial 
Government. Thus, in the instant proceedings due to the act or 
mistake of the Court no prejudice should be caused to the interest 
of the Federal or Provincial Government like any other ordinary 
litigant before the Court. Moreover, when we have declared the 
judgment under challenge “per incurium”, its natural fallout is that 
whosoever has availed its benefit in any form he is bound to 
restore it in favour of the other, whose interest has been prejudiced 
due to such act of the Court. It is also to be noted here that all the 
sums 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 
152 
from the public exchequer, which is otherwise a sacred public 
trust, therefore, its improper use or mishandling in any form is to 
be checked and controlled at all costs. 
98. 
The discussion made in the last two paragraphs of this 
judgment gains full support from the case of South Eastern 
Coalfields Ltd. v. State of M.P. (AIR 2003 SC 4482), wherein after 
detailed discussion with reference to several other cases on the 
doctrine of “actus curiae neminem gravabit”, the Indian Supreme 
Court observed as under:- 
“26. 
That no one shall suffer by an act of the Court is not a rule 
confined to an erroneous act of the Court; the ‘act of the court’ 
embraces within its sweep all such acts as to which the court may 
form an opinion in any legal proceedings that the Court would not 
have so acted had it been correctly apprised of the facts and the law. 
The factor attracting applicability of restitution is not the act of the 
Court being wrongful or a mistake or error committed by the court; 
the test is whether on account of an act of the party persuading the 
Court to pass an order held at the end as not sustainable, has 
resulted in one party gaining an advantage which it would not have 
otherwise earned or the other party has suffered an impoverishment 
which it would not have suffered but for the order of the Court and 
the act of such party. The quantum of restitution, depending on the 
facts and circumstances of a given case, may take into consideration 
not only what the party excluded would have made but also what 
the party under obligation has or might reasonably have made. 
There is nothing wrong in the parties demanding being placed in the 
same position in which they would have been had the Court not 
intervened by its interim order when at the end of the proceedings 
the Court pronounces its judicial verdict which does not match with 
and countenance its own interim verdict. Whenever called upon to 
adjudicate, the Court would act in conjunction with what is the real 
and substantial justice. The injury, if any, caused by the act of the 
Court shall be undone and the gain which the party would have 
earned unless it was interdicted by the order of the court would be 
restored to or conferred on the party by suitably commanding the 
party liable to do so.  Any opinion to the contrary would lead to 
unjust if not disastrous consequences. Litigation may turn into a 
fruitful industry. Though litigation is not gambling yet there is an 
element of chance in every litigation. Unscrupulous litigants may 
feel encouraged to approach the Courts, persuading the court to 
Const. Petition No.127 of 2012 
153 
pass interlocutory orders favourable to them by sues are yet to be 
heard and determined on merits and if the concept of restitution is 
excluded from application to interim orders, then the litigant would 
stand to gain by swallowing the benefits yielding out of the interim 
orders even though the battle has been lost at the end. This cannot 
be countenanced. We are, therefore, of the opinion that the 
successful party finally held entitled to a relief assessable in terms of 
money at the end of the litigation, is entitled to be compensated by 
award of interest at a suitable reasonable rate for the period for 
which the interim order of the Court withholding the release of 
money 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 to 
the arguments of some learned ASCs, insisting for only prospective 
applicability of this judgment, that this Court has not legislated or 
laid down any new law through its judgment in hand, but only 
interpreted and enunciated correctly an existing law, which is in 
force in the form of Article 205 of the Constitution with its Fifth 
Schedule and President’s Order 3 of 1997, since the year 1973 and 
1997 respectively. Therefore, premised on these admitted facts 
there is no tenable legal ground to hold the applicability of this 
judgment prospectively and not retrospectively, so as to curb the 
mischief of earlier erroneous enunciation/interpretation of law. 
100. 
From the earlier discussion as regards the scope and 
applicability of paragraph No.29 of President’s Order 3 of 1997 (as 
reproduced earlier) read with regulation No.423 of CSR, we find 
that, prima facie, the honourable retired Judges shown in the 
above reproduced chart, at serial No.18,20,29,31 & 35 (M/s 
Justice Dr. Munir Ahmad Mughal, Justice Ghulam Mahmood 
Qureshi, Justice Muhammad Muzammal Khan, Justice Fazal-e-
Miran Chowhan, and Mst. Shahnaz Ansari w/o Late Justice 
Tanveer 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 
154 
Khan) from the Peshawar High Court; serial No.2 (Mr. Justice 
Mehta Kelash Nath Kohli) from the Balochistan High Court; and, 
serial No.4,5&6 (M/s Justice Majida Rizvi, Justice Dr. Ghous 
Muhammad, and Justice Amanullah Abbasi) from the Sindh High 
Court, having actually served for different periods, but for more 
than four years or four years nine months (as the case may be) in 
each case and in some cases just few days less than five years, are 
eligible to lay their claim for pensionary benefit before the 
competent authority (President) by following due process of law in 
line with paragraph-29 of President’s Order 3 of 1997 and 
applicable regulation No.423 of CSR, which reads as under:- 
“423. (1) A deficiency of a period not exceeding six months in the 
qualifying service of an officer shall be deemed to have been 
condoned automatically. 
 
(2) The authority competent to sanction pension may 
condone a deficiency of more than six months but less than a 
year subject to the following conditions, namely:- 
(a) 
The officer has died while in service, or has retired 
under circumstances beyond his control, such as 
on invalidation or the abolition of his post, and 
would have completed another year of service if he 
had not died or retired. 
(b) 
The 
service 
rendered 
by 
him 
had 
been 
meritorious.” 
101. 
However, those honourable retired judges of the High 
Court, who have retired as such before coming into force of 
President’s Order 3 of 1997 on 12.2.1997, for the purpose of 
making up similar deficiency will be governed by the proviso to 
paragraph-13(c) of President’s Order 9 of 1970, providing for 
making up deficiency upto three months or less and not by 
paragraph-29 of the President’s Order 3 of 1997 read with 
regulation No.423 of CSR. We, therefore, expect that if any such 
Const. Petition No.127 of 2012 
155 
representations or fresh representations are made by the 
honourable retired judges qualified under either of the two 
categories of retired judges, before the President of Pakistan, he 
will decide the same within two month so as to fairly adjudicate 
and safeguard the interest of these honourable retired Judges in 
accordance with applicable law.  
102. 
Since during his arguments, Mr. Munir A. Malik, learned 
Sr. ASC made reference to a subsequent judgment of the High 
Court 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 the 
same controversy, passed in favour of one honourable retired 
Judge of the High Court and also placed on record copy of said 
Petition under Article 199 of the Constitution, alongwith the copy 
of judgment passed therein, it became imperative for us to discuss 
this aspect of the case also. A perusal of contents of the said 
petition reveals that though in the petition a reference to the earlier 
judgment of a Division Bench of the High Court dated 02.2.1995 in 
C.P No.D-2308/1994 (Re: Ahmed Ali U. Qureshi v. Federation of 
Pakistan and others) was made, but the prayers made by the 
petitioner were for seeking directions to the President of Pakistan 
for condonation of deficiency in her length of service and to 
determine the payable pension of the petitioner as a retired judge 
of the High Court notwithstanding her length of service; as before 
her retirement she had served as a Judge of the High Court for a 
period of 04-years, 07-months and 12-days. The learned Division 
Bench of the High Court, while passing its judgment dated 
1.7.2008, had not made any independent discussion on the merits 
of the contentions raised before it by the petitioner, but simply 
Const. Petition No.127 of 2012 
156 
placed reliance upon the judgment under challenge dated 
6.3.2008, which was referred before it. In such circumstances, it 
goes without saying that as the above referred judgment has now 
been declared per incuriam, therefore, as its corollary, the 
judgment dated 1.7.2008 in C.P No.D-24/2002, is also liable to be 
set aside and the petition has to be dismissed. We accordingly 
order so. However, it will be open for the honourable retired 
Justice Majida Rizvi that she may apply afresh to the President of 
Pakistan for availing the benefit of relevant provisions of President 
Order No.3 of 1997 applicable to her case; paragraph-29 whereof, 
read with regulation No.423 of CSR, inter alia, provides for 
automatic making up of deficiency in the length of service upto six 
months. 
103. 
As some of the learned ASCs on behalf of the Honourable 
Retired Judges have also attempted to present their case on the 
cardinal principle of independence of judiciary, including financial 
independence, and National Judicial Policies (NJP) 2009 and 2012, 
we may mention here that indeed the “JUDICIARY”, as a third 
pillar of the State needs to be independent in all respects, 
including its financial matters, but at the same time such 
independence is subject to the mandate of the Constitutional 
provisions. A bare reading of Part VII Chapters 1 to 4 i.e. Articles 
175 to 212 together with Article 2-A and some other relevant 
constitutional provisions define such independence of the 
judiciary, thus, it cannot be argued that the issue regarding right 
to pension for retired Judges of the High Court, which is the 
crucial point under consideration in the present proceedings, has 
as such any nexus to the financial independence of judiciary as a 
Const. Petition No.127 of 2012 
157 
institution. Similarly, reference to National Judicial Policies 2009 & 
2012 confer or create no right to pension beyond the intent of the 
legislature, as evident from the plain reading of Article 205 read 
with Fifth Schedule of the Constitution and the applicable 
President’s Orders 9 of 1970 or 3 of 1997.  
104. 
Apart 
from 
various 
Constitutional 
provisions 
and 
Presidential orders reproduced and discussed above, some of the 
learned ASCs have also made reference of other Presidential Orders 
Nos.1 of 1968, 5 of 1983, 3 of 1990, 2,6,7 & 9 of 1991, 1 & 2 of 
1993, 1&2 of 1994, 3&5 of 1995, 2 of 1997, 1,2&3 of 1998, 2&3 of 
2000, 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 of 
judgment under challenge is concerned except interpretation of 
relevant Constitutional provisions and President’s Orders 9 of 1970 
and 3 of 1997, on the subject of right to pension of honourable 
retired Judges of the High Court, having less than five years actual 
service as such, no detailed discussion on these Presidential Orders 
is required. More so, as all these President’s Orders relate to the 
increase in salaries and other benefits of the judges of the superior 
judiciary or grant of some additional facilities to them from time to 
time while in actual service or after retirement, as the case may be. 
But have no nexus to the determination of right to pension by the 
President in terms of paragraph-2 of the Fifth Schedule to Article 
205 of the Constitution. 
105. 
When we look at the individual cases of some of the 
honourable retired Judges of the High Court, we find that M/s 
Mian 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 
158 
of Al-Jehad Trust, (supra). In this case when the question of 
appointment of judges in the superior judiciary came up for 
consideration before a five member Bench, inter alia, following 
discussion was made:- 
 
“The independence of Judiciary is inextricably linked and 
connected with the constitutional process of appointment of 
Judges of the superior Judiciary. The relevant constitutional 
provisions are to be construed in a manner which would ensure 
the independence of Judiciary. A written Constitution is an 
organic document designed and intended to cater the need for all 
times to come. It is like a living tree, it grows and blossoms with 
the passage of time in order to keep pace with the growth of the 
country and its people. Thus, the approach, while interpreting a 
constitutional provision should be dynamic, progressive and 
oriented 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, so 
that it may be able to meet the requirement of ever changing 
society. The general words cannot be construed in isolation but 
the same are to be construed in the context in which, they are 
employed. In other words, their colour and contents are derived 
from their context. 
 
The above principles will have to be kept in view while 
construing the provisions of the Constitution relating to the 
appointments/transfers of Judges of the superior Judiciary. 
 
Courts, while construing a constitutional provision, can 
press into service an established constitutional convention in 
order to understand the import and the working of the same, if it 
is not contrary to the express provision of the Constitution.” 
More over, as regards few earlier appointments of the judges in the 
High Courts, which were found to be violative of the scheme of the 
Constitution, some parameters were laid down and following 
directions were issued:- 
 
That upon the appointment of the permanent Chief 
Justices in the High Courts where there is no permanent 
incumbent or where there are permanent incumbents already, 
they shall process the cases of the High Courts' Judges in terms 
of the above declaration No. 13 within one month from the date of 
this order or within one month from the date of assumption of 
office by a permanent incumbent whichever is later in time and to 
Const. Petition No.127 of 2012 
159 
take action for regularising the appointments/confirmation of the 
Judges recently appointed/confirmed inter alia of respondents 
Nos.7 to 28 in Civil Appeal No.805/95 in the light of this short 
order. In like manner, the Chief Justice of Pakistan will take 
appropriate action for recalling permanent Judges of the Supreme 
Court from the High Courts where they are performing functions 
as Acting Chief Justices and also shall consider desirability of 
continuation or not of appointment in the Supreme Court of Ad 
Hoc/Acting Judges. 
106. 
This being the position, despite their effective service as 
Additional Judges or otherwise for any period, since their 
appointments were neither legal nor regularized, they cannot be 
even considered as Judges of the High Court. Besides, calculations 
as regards their actual period of service as retired judges of the 
High Court, made by the learned Sr. ASC during his arguments, to 
bring their case within the category of Judges, who have served as 
a Judge of the High Court for five years or more, are entirely 
misconceived, inasmuch as, from no stretch of imagination 
intervening period, when they had not served as High Court 
judges, could form part of their actual period of service for the 
purpose of such relief.   
107. 
Arguments of some of the learned Sr. ASCs with reference 
to the observations of this Court contained in paragraph No.178 of 
the judgment in the case of Sindh High Court Bar Association 
(supra) are also without force, as applying the principle of exercise 
of de facto jurisdiction, only judicial proceedings were saved, but 
these observations had not conferred or blessed any sanctity to the 
findings in the judgments passed during such proceedings nor 
protected them from being challenged in accordance with law. To 
make this view more clear the relevant paragraph No.178 is 
reproduced as under:- 
Const. Petition No.127 of 2012 
160 
178. However, the judgments and orders passed, and proceedings 
taken in the cases of other litigants involving their rights and 
interests in civil, criminal and other matters, any function 
performed under the Constitution including administering of oath 
to the President, and other acts, whether administrative or 
financial, done or performed by Abdul Hameed Dogar, J, and 
such other Judges or by any authority, or by any person, whether 
in 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 3rd 
November, 2007 to 31st July, 2009, i.e. the date of this judgment 
would not be affected on the principle laid down in Asad Ali's case 
(supra). 
108. 
Considering the claim/case of the widows/legal heirs of 
some of the Honourable Retied Judges, we may mention here that 
the 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 terms 
of paragraphs No.4 to 6 relating to the Supreme Court and the 
High 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 of 
public policy must yield, another important aspect of the case, on 
which much arguments have not been advanced by the learned 
ASCs is that as a result of judgment under challenge, erroneously 
giving it a status of judgment in rem, this Court has hugely 
burdened 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 interest 
litigation to protect the rights of every citizen of this country qua 
public exchequer and to lay down correct law for this purpose. 
110. 
While arguments with reference to principle of past and 
closed transaction were being advanced before us repeatedly, we 
also enquired from the learned ASCs as to whether such principle, 
Const. Petition No.127 of 2012 
161 
if at all found applicable to the present case, should not have been 
in the first place conversely made applicable to the case of those 
honourable retired Judges of the High Court, who stood retired 
during the period from 1970 onwards upto the date of judgment 
under challenge, as they never agitated such claim during this long 
period after their retirement from time to time. None of the learned 
ASCs could offer any satisfactory reply to this query, except that 
the right to pension has accrued in their favour on the basis of 
judgment under challenge. This reply on their behalf is not only 
frail and meritless but negates their other contention that right to 
pension was otherwise available in their favour on the basis of 
Article 205 read with Fifth Schedule of the Constitution and 
President’s Order 9 of 1970 or President’s Order No.3 of 1997. 
Undeniably, the right to pension of every Judge of the High Court 
is to be determined and regulated in terms of Paragraphs-2 and 3 
of Fifth Schedule to Article 205 of the Constitution, which is the 
basic instrument for this purpose, together with applicable 
President’s Order No.9 of 1970 or 3 of 1997. Thus, the judgment 
under challenge confers no independent right to pension for them. 
Needless to mention here that where the superstructure is built on 
altogether faulty factual or legal foundation, upon its removal, it is 
bound to collapse as a whole. 
111. 
Considering the question of indulgence or sympathetic 
consideration of the case of the honourable retired Judges of the 
High Court, having been already benefited from the judgment 
under challenge, we cannot lose sight of the fact that the heavy 
sums paid to them, as partly reflected in the above reproduced 
chart, 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 
162 
illegality committed by the Court could make them entitled for 
payment of more than Rs.1,647,130,156/- and further liability of 
payment of Rs.32,604,359/- towards monthly pension. In view of 
our discussion in this context made in the foregoing paragraphs, 
we have no option but to hold that all the sums paid to each of the 
honourable retired judges, who were made entitled for pensionary 
benefits in terms of the judgment under challenge, are liable to be 
recovered from them.  
112. 
It is necessary to mention here so as to make the things 
more clear that admittedly before his retirement as a Judge of the 
High Court on 19.10.1994, retired Justice  Ahmed Ali U. Qureshi 
had served as such for a period of 03-years and 04-months 
(approximately) and since by this judgment the Constitutional 
Petition No.D-2308 of 1994 filed by retired Justice Retied Ahmed 
Ali U. Qureshi before the High Court of  Sindh has also been 
dismissed, therefore, all the benefits, except as per his entitlement 
as a retired District Judge qua paragraph 15 of President’s Order 9 
of 1970,  availed under the said judgment of the Sindh High Court 
and the judgment under challenge are to be recovered from the 
legal heirs of the deceased to the extent of their liability in this 
regard, but in accordance with law.  
113. 
There is yet another aspect of this case, which has been 
argued before us by some of the learned ASCs and honourable 
retired Judges of the High Court, who were either elevated or had 
resigned from their offices after the judgment under challenge. 
They 
had 
contended 
that 
since 
at 
the 
time 
of 
their 
elevation/resignation judgment under challenge was in full force 
applicable, followed and implemented, therefore, valuable rights 
have accrued in their favour on the principle of legitimate 
Const. Petition No.127 of 2012 
163 
expectancy which cannot be done away lightly by way of some 
observations in this case. Indeed, such submissions of some of the 
newly elevated or honourable retied Judges of the High Court are 
in line with the ratio of the judgment under challenge, but at the 
same time it is to be noticed that the Honourable Judges, who 
have resigned from their office before completion of minimum five 
years actual service as such have to bless their own stars for this 
purpose because their mere oral assertion that they had to resign 
from their office under compelling circumstances, cannot be legally 
accepted as a valid defence. As regards the other Judges, who have 
taken oath of their office as High Court Judge after the judgment 
under challenge, suffice it to observe that since the said judgment 
has been declared per incurium, and become null and void, 
therefore, any claim based on the principle of locus poenitentiae or 
legitimate expectancy cannot hold the field. More so, when as to 
their right to pension honourable retired judges are to be governed 
by the law in force at the relevant time i.e. Article 205 of the 
Constitution read with its Fifth Schedule and President Order No.3 
of 1997, regarding which a detailed discussion has already been 
made in the preceding paragraphs of this judgment, and not by the 
dicta laid down in the judgment under challenge. The honourable 
retired judges of the High Court also cannot claim any benefit on 
account of its implementation by the respondents on the principle 
of past and closed transaction or on the principle estoppel, as on 
one hand it is a continuing liability over the public exchequer to 
the tune of approximately Rupees Thirty million per month, thus 
giving recurring cause of action; and, on the other hand, being 
judgment of the apex Court, the respondents had no option but to 
implement it in its letter and spirit or to face penal consequences 
of non-compliance, including contempt proceedings. 
Const. Petition No.127 of 2012 
164 
114. 
It is pertinent to mention here that the principle of locus 
poenitentiae, which refrains from rescinding, if a decisive step is 
taken in furtherance of some action, is mainly confined to 
administrative actions and not to the judicial pronouncements, as 
rescinding in the form of review, recalling, varying or amending the 
earlier order or judgment will have statutory backing in the form of 
Article 188 of the Constitution and section 21 of the General Clauses 
Act 1897. Thus, the principle of locus poenitentiae cannot placidly 
take away the authority of the apex Court to undo a wrong 
occasioned due to the act of the Court. If a contrary view of the 
matter is taken, then these provisions of law will become a farce, 
meant only for the purpose of academic discussion without power to 
repair the loss caused to an aggrieved party due to a judgment per 
incuriam, null and void in nature. Here, in order to understand the 
principle of locus poenitentiae more clearly, reference to the cases of 
Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207) and 
Abdul Haq Indhar v. Province of Sindh (2000 SCMR 907), will also be 
useful. In the case of Engineer-in-Chief Branch (supra), it was held 
that locus poenitentiae is the power of receding till a decisive step is 
taken but it is not a principle of law that order once passed 
becomes irrevocable and past and closed transaction. If the order 
is illegal then perpetual rights cannot be gained on the basis of such 
an illegal order. In the other case of Abdul Haq Indhar (supra), 
discussing the principle of locus poenitentiae, provisions of section 21 
of General Clauses Act were also considered and it was affirmed that 
the authority which can pass an order, is entitled to vary, amend, 
add to or to rescind that order, as locus poenitentiae is the power of 
receding till a decisive step is taken, but it is not a principle of law 
that order once passed becomes irrevocable and past and closed 
transaction. If the order is illegal then perpetual rights cannot be 
Const. Petition No.127 of 2012 
165 
gained on the basis of such an illegal order. Thus, mere bonafide of 
the beneficiaries of the judgment under challenge, as claimed, which 
carry a big question mark due to their legal background and post 
retirement conduct, as discussed earlier, is not enough to dilute the 
effect 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 under 
challenge, here a reference to the case of Justice Hasnat Ahmed 
Khan v. Federation of Pakistan/State (PLD 2011 SC 680) is also 
necessary wherein the consequence of unconstitutional P.C.O 1 of 
2007, dated 3.11.2007 qua it implications on the superior judiciary 
were examined in detail with reference to an order passed by a seven 
member Bench of the Supreme Court on the same day, and as 
regards the judges who have either taken oath under the P.C.O 1 of 
2007 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 and 
pensionary benefits upto 20.4.2010 when 18th Constitutional 
Amendment was passed; however if ultimately they are found to be 
guilty of contempt of the Court  by the Supreme Court, their cases 
for affecting the recovery of pensionary benefits in future shall be 
dealt 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 the 
threshold of minimum five years actual service, has no legal 
foundation. 
116. 
As regards the issue of recovery of pensionary benefits 
availed by some honourable retired judges of the High Court in 
terms of judgment under challenge, when we look at the recent 
pragmatic approach employed by this Court to safeguard public 
interest qua securing public exchequer, we find that in the case of 
Const. Petition No.127 of 2012 
166 
Syed Mehmood Akhtar Naqvi versus Federation of Pakistan (PLD 
2012 SC 1054) and Syed Mehmood Akhtar Naqvi versus 
Federation of Pakistan (PLD 2012 SC 1089), wherein declaration 
was issued against number of elected MNAs, MPAs and Senators 
for their disqualification from being Members of Majlis-e-Shoora 
(Parliament), Provincial Assemblies and the Senate, because of 
holding dual nationalities and consequent disqualification under 
Article 63(1)(c) of the Constitution, despite they having served their 
respective Institution (Parliament) during the intervening period, 
Court ordered that all these Members of the Parliament and 
Provincial Assemblies etc being declared disqualified are also 
directed to refund all monetary benefits drawn by them for the 
period during which they kept the public office and have drawn 
their emoluments etc. from the public exchequer, including the 
remuneration, T.A./D.A., facilities for accommodation alongwith 
other perks which shall be calculated in terms of the money by the 
Secretaries of the National Assembly, Senate and Provincial 
Assemblies accordingly. 
117. 
In another case of similar nature titled Muhammad Yasin 
versus Federation of Pakistan (PLD 2012 SC 132), relating to 
appointment of Chairman, OGRA, which was declared illegal and 
void ab inito, it was further ordered that all salaries, value of 
perquisites and benefits availed from the date of his appointment 
till the date of the judgment shall be recovered by the Government 
from the beneficiary Chairman at the earliest. In contrast the facts 
of these two cases, the beneficiaries of judgment under challenge 
(the honourable retired judges of the High Court) during the 
intervening period have not worked or undertaken any assignment 
so as to make their cases worth consideration for some concession 
or relief on this ground. 
Const. Petition No.127 of 2012 
167 
118. 
The above discussed recent trend adopted by this Court 
to safeguard public exchequer from being misused has persuaded 
us to follow a similar course in the present case. More so, as this 
principle can not be deviated merely for the reason that this time 
the affectees of this judgment are some honourable retired judges 
of the High Court, who are very respectable citizens of the Country. 
Rather, adoption of this course in the present proceedings is all the 
more necessary to strengthen the inbuilt process of self 
accountability, which is necessary to earn public confidence in our 
judicial system.  
119. 
Leaving apart the principles of English jurisprudence qua 
the intricacies of the legal principles discussed hereinabove, when we 
simply look at the principles of Islamic jurisprudence, having special 
significance in our judicial system by virtue of Article 2-A of the 
Constitution, in the context of moot point No.(c)  of paragraph-61 
(ibid), we find that there is no legal notion under the Islamic 
dispensation of justice, furnishing any reasonable justification for the 
honourable retired judges of the High Court to retain the financial 
benefits availed by them under the disguise of pension on the basis of 
judgment under challenge, which we have already declared per 
incuriam, 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 laws 
in any form, may be constitutional provisions, including 
fundamental rights provided in Part-II of the Constitution or the 
sub-Constitutional legislations of different nature are based on one 
broad principle of equal dispensation of justice for all, for which 
every citizen of this country enjoys similar legal status, thus, he 
cannot be discriminated on any high moral ground. We have no 
Const. Petition No.127 of 2012 
168 
hesitation to further clarify that interest of public at large is to be 
given priority and preference over the interest of individuals, 
therefore, interest of public at large cannot be sacrificed to extend 
profane benefits to some individuals. Thus, to say that this Court 
looking to the peculiar facts and circumstances emerging from the 
judgment under challenge, shall take a lenient view of the matter 
so as to protect the benefit of the judgment under challenge 
already availed by some honourable retired High Court Judges has 
absolutely no legal or moral force. As a matter fact, all honourable 
retired judges of the High Court, who had less than minimum five 
years actual service to their credit as such and beneficiary of 
judgment under challenge, are legally and morally bound to restore 
all such gains to the public exchequer so as to set an example for 
the society about their high morals and conduct, which is expected 
from all those who are supposedly role model for the society.  
121. 
Before parting with this judgment, we also record a note 
of our appreciation for M/s Khawaja Haris Ahmed and Salman 
Akram Raja, the two learned amici curiae appointed in this case, 
for their valuable assistance in this matter. 
 
 
 
 
 
 
 
 
 
Islamabad, the 
11th April, 2013. 
Approved for reporting. 
�ا� 
Judge 
 
 
 
 
Judge  
 
Judge 
 
 
 
 
 
Judge  
 
Judge 
 
 
 
169 
 
 
MIAN SAQIB NISAR, J.- Pursuant to the short order 
dated 11.4.2013 consensually passed by this Bench in the noted 
matter, my learned brother Anwar Zaheer Jamali, J. has composed 
the detailed reasons. I have the privilege of going through such 
exposition and to an extent agree thereto, however, with due 
deference to the honourable Judge, where my reasons are 
otherwise 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 the 
podium by all the concerned and the laws cited in that context, 
have been extensively and elaborately given in the judgment of my 
learned brother, however, still though at the cost of repetition, but 
with an object to facilitate the comprehension of my present 
determinant I shall make a brief mention of such facts which are 
absolutely relevant, in that:- these proceedings having emanated 
from a note dated 21.11.2012, put up by the Registrar of this 
Court to the Hon’ble Chief Justice of Pakistan stating therein, in 
some detail, the background of the verdict rendered by this Court 
in 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 the 
pensionary rights (benefits) of the honourable retired Judges of the 
High Courts (hereinafter referred to as the Judges), in such 
decision, inter alia, have been based upon P.O.8/2007, which was 
promulgated by the President of Pakistan on 14.12.2007, but such 
order (PO) has been declared unconstitutional, ultra vires and void 
ab initio vide judgment of this Court dated 31.7.2009 passed in 
Sindh High Court Bar Association through its Secretary and 
 
 
170 
another Vs. Federation of Pakistan through Secretary, 
Ministry of Law and Justice, Islamabad and others (PLD 2009 
SC 879), besides, “the judgment” otherwise is wrong in law, 
therefore, it was suggested “the matter is therefore of great public 
importance as huge public money is being expended without any legal 
justification despite the fact that the basis of the judgment itself has lost its 
validity. 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 the 
following effect:- 
“Perusal of the above note prima facie makes out a case 
for examination of points raised therein. Therefore, 
instant note be registered as Suo Moto Misc. Petition and 
it may be fixed in Court in the week commencing from 
03.12.2012. Notice to Hon’ble Retired Judges, who are 
beneficiaries of the judgment dated 6.3.2008 be issued. 
Office shall provide their addresses. Notice to Attorney 
General for Pakistan may also be issued.” 
 
This is how the noted matter has come up for hearing before the 
Court and vide order dated 29.1.2013, the Bench seized of the 
matter, appointed M/s Makhdoom Ali Khan (not appeared), Khawaja 
Haris Ahmed and Salman Akram Raja, learned ASCs to assist the 
Court as amicus curiae. In the context of the above, the epitome of 
the 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 Court 
upon whose note these proceedings were initiated has been 
seriously questioned (2) whether (in the context of maintainability) “the 
judgment”, which was passed in the appellate jurisdiction of this 
Court under Article 185 of the Constitution, and/or under Article 
 
 
171 
184(3) thereof can (or cannot) be reviewed, revisited and set aside by 
this Court, in the instant suo moto proceedings (note: as while arguing 
from the Judges side it is the plea of almost all, that these proceedings predominantly have nexus 
to Article 184(3) of the Constitution) (3) whether these proceedings qualify (or 
do not qualify) the test and the principles set out by law (including the 
law enunciated by this Court) for the purposes of review of a judgment, 
either under Article 188 of the Constitution or even while 
exercising suo moto jurisdiction by this Court (4) whether “the 
judgment” is founded upon valid, proper, due and correct 
consideration, application and interpretation of relevant provisions 
of law, i.e. Article 205 of the Constitution of Islamic Republic of 
Pakistan 1973 (hereinafter referred to as the Constitution) read 
with the Fifth Schedule thereto, and various (certain) Presidential 
Orders (5) whether a vested right(s) stand created in favour of the 
Judges on the basis of “the judgment”, which cannot be stultified 
vide the instant proceedings, even if “the judgment” is per 
incuriam, and such right(s) is protected by the rules of past and 
closed transaction, the locus poenitentiae, and legitimate 
expectation (6) whether in the facts of the matter any protection is 
available to the Judges on the rule of equality as enshrined by 
Article 25 of the Constitution (7) without prejudice to the above, if 
this Court comes to the conclusion, that “the judgment” is per 
incuriam and thus it should be set aside, whether such decision 
shall have prospective or retroactive effect. And the right of the 
Judges to receive pension in future shall not be affected on 
account of such (this) decision; and in any case, the amounts so far 
received by them, under “the judgment” cannot be directed in law 
to be recovered (from them). 
 
 
172 
MAINTAINABILITY 
(Questions No.1, 2 and 3) 
3. 
 
My learned brother has exhaustively dealt with the 
question of maintainability, which is a threshold proposition of the 
matter, and in this behalf extensive reference to the case law has 
also been made. I therefore have no intention to add any 
superfluity to that, however, my approach to the proposition is 
quite simple, plain and facile, in that, the Supreme Court of 
Pakistan is the apex Court of the country. It is the final, the 
utmost and the ultimate Court, inter alia, in relation to, (a) 
resolving disputes inter se the parties before it, (b) securing and 
enforcing 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 and 
the enunciation of the law of the land, (d) examining and adjudging 
the legislative Acts and the executive order/actions of the State, in 
the exercise of its power of judicial review, (e) the exercise of 
original jurisdiction as per the mandate of Article 184 of the 
Constitution, (f) the advisory jurisdiction within the parameter of 
Article 186 of the Constitution, (g) the review of its decision 
(judgments) (see Article 188) (h) a special jurisdiction conferred upon this 
Court by any law. And above all the power to do complete justice 
(see Article 187). In terms of Article 189 of the Constitution, “Any 
decision of the Supreme Court shall, to the extent that it decides question of law 
or is based upon or enunciates a principle of law, (emphasis supplied) be binding on 
all other courts in Pakistan”. Moreover, according to Article 190 “All 
executive and judicial authorities throughout Pakistan shall act in aid of the 
Supreme Court”. 
4. 
 
The aforestated legal position explains and highlights 
 
 
173 
the true magnitude and the supremacy of this Court in regard to 
the dispensation of justice in the country and the enunciation and 
the 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 and 
ultimate in nature, has to be imperatively and mandatorily 
followed, obeyed and adhered to by all the concerned. Reading 
Articles 189 and 190 conjointly, and while keeping in view the 
scheme of the constitution, the very purpose, the pivotal position 
and the status of this Court (prescribed above), it is expedient that 
correct law should be pronounced by the apex Court. And 
pursuant to the above object and due to the venerated position of 
this Court, the Court is cumbered with, inviolable responsibility, 
and a sacred duty, to interpret, declare and enunciate the law 
correctly, so that it should be followed, obeyed and adhered to 
purposively and in letter and spirit, by all the other organs of the 
State (including all other Courts in Pakistan) strictly inconsonance with the 
true aim of the aforementioned Articles. It may be pertinent to 
mention here, that any invalid enunciation of law, shall contravene 
and impugn the very character, and attribute(s) of this Court and 
such bad/wrong law shall cause drastic adverse affects on the 
socio-economic, political, geographical, ethnic, cultural aspects 
and dynamics of the nation, the society, the people at large and the 
State in presentee or in futurio. In the above context, reference can 
also be made to Article 4 of the Constitution which enshrines (inter 
alia) an inalienable right of every citizen to be dealt with in 
accordance with the law, obviously this shall mean the law that is, 
correctly laid down by this Court. As it is a cardinal principle of 
justice, that the law should be worn by the Judge in his sleeves 
 
 
174 
and 
justice 
should 
be 
imparted 
according 
to 
the 
law, 
notwithstanding whether the parties in a lis before the Court are 
misdirected and misplaced in that regard. Therefore, if any law 
which has been invalidly pronounced and declared by this Court, 
which in particular is based upon ignorance of any provisions of 
the Constitution, and/or is founded on gross and grave 
misinterpretation thereof; the provisions of the relevant law have 
been ignored, misread and misapplied; the law already enunciated 
and settled by this Court on a specific subject, has not been taken 
into account, all this, inter alia, shall constitute a given 
judgment(s) as per incuriam; and inconsistent/conflicting decision 
of this Court shall also fall in that category. Such decision 
undoubtedly shall have grave consequences and repercussions, on 
the State, the persons/citizens, the society and the public at large 
as stated above. Therefore, if a judgment or a decision of this Court 
which is found to be per incuriam (note: what is a judgment per incuriam has 
been dealt with by my brother), it shall be the duty of this Court to correct 
such wrong verdict and to set the law right. And the Court should 
not shun from such a duty (emphasis supplied). For the support of my 
above view, I may rely upon the law laid down in the dicta Lt. Col. 
Nawabzada Muhammad Amir Khan Vs. The Controller of Estate 
Duty, Government of Pakistan, Karachi and others (PLD 1962 
SC 335 at page 340):- 
“Where, however, there is found to be something directed 
by the judgment of which review is sought which is in 
conflict with the Constitution or with a law of Pakistan, 
there it would be the duty of the Court, unhesitatingly to 
amend the error. It is a duty which is enjoined upon every 
Judge of the Court by the solemn oath which he takes when 
he enters upon his duties, viz., to "preserve, protect and 
 
 
175 
defend the Constitution and laws of Pakistan" But the 
violation of a written law must be clear.” 
M. S. Ahlawat Vs. State of Haryana and another (AIR 2000 SC 
1680):- 
“15. To perpetuate an error is no virtue but to correct it is 
a compulsion of judicial conscience.” 
Bengal Immunity Co. Ltd., Vs. State of Bihar and others (AIR 
1955 SC 661):- 
“19. 
Reference is made to the doctrine of finality of 
judicial decisions and it is pressed upon us that we should 
not reverse our previous decision except in cases where a 
material provision of law has been overlooked or where the 
decision has proceeded upon the mistaken assumption of 
the continuance of a repealed or expired statute and that 
we should not differ from a previous decision merely 
because a contrary view appears to us to be preferable.  
 
It is needless for us to say that we should not lightly 
dissent from a previous pronouncement of this court. Our 
power of review, which undoubtedly exists, must be 
exercised with due care and caution and only for 
advancing the public well being in the light of the 
surrounding circumstances of each case brought to our 
notice but we do not consider it right to confine our power 
within rightly fixed limits as suggested before us.  
 
If on a re-examination of the question we come to 
the conclusion, as indeed we have, that the previous 
majority decision was plainly erroneous then it will be our 
duty to say so and not to perpetuate our mistake even when 
one learned Judge who was party to the previous decision 
considers it incorrect on further reflection (emphasis supplied 
by me). 
In Superintendent and Remembrancer of Legal Affairs, west 
Bengal Vs. Corporation of Calcutta (AIR 1967 SC 997) it is 
held:- 
 
 
176 
“If the aforesaid rule of construction accepted by this 
Court is inconsistent with the legal philosophy of our 
Constitution, it is our duty to correct ourselves and lay 
down the right rule (emphasis supplied by me). In constitutional 
matters which affect the evolution of our policy, we must 
more readily do so than in other branches of law, as 
perpetuation of a mistake will be harmful to public 
interests. While continuity and consistency are conducive to 
the smooth evolution of the rule of law, hesitancy to set 
right deviations will retard it growth. In this case, as we 
are satisfied that the said rule of construction is 
inconsistent with out republican polity and, if accepted, 
bristles with anomalies, we have no hesitation to 
reconsider our earlier decision.” 
The question, however, shall be as to how this duty should be 
discharged and the object of correcting the wrong law, and setting 
it (the law) right should be achieved. One of the obvious ways of 
doing so is, when a party to the lis seeks review of the wrong 
judgment in terms of Article 188 of the Constitution. But what, if 
that remedy is not availed for any reason, or even if availed by the 
concerned, 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 all 
or in other words, even if a judgment which is patently per 
incuriam, infinitely should be left outstanding, allowing it to 
become the liability of this Court and our legal/judicial system, for 
all future times. And the (this) Court and the system should be 
fettered by it, and held as a captive thereto, leaving it intact to 
pervade and permeate serious prejudice in perpetuity to the 
persons/citizens of the country and even the State, compelling 
them, to be dealt with by a wrong/invalid law, despite it having 
come to the notice of the Court, through any means whatsoever, 
 
 
177 
that such decision suffers from patent and gross vice, and it is 
vividly a judgment per incuriam by all references. The answer is 
“No”. In my candid view the approach to leave such a decision to 
stay intact shall be ludicrous and shall lead to drastic effects as 
indicated above. Rather in such a situation this Court, having 
special 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 to 
follow the same as a valid precedent, (c) and/or to set it aside. For 
the exercise of jurisdiction in that regard and for the discharge of 
the duty as mentioned earlier, it is absolutely irrelevant and 
immaterial vide (via) which source it (decision) has come to the notice 
of the Court. The Court once attaining the knowledge of such a 
blemished and flawed decision has the sole privilege, to examine 
the same and to decide about its fate, whether it is per incuriam or 
otherwise. In this context, it may be mentioned, for example, if 
while hearing some case, it is brought to the attention of the Court 
by 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 a 
Judge (Judge of this Court) in the course of his study or research, 
comes across any judgment which in his view is per incuriam or if 
any information through the Registrar of the Court is passed on to 
the honourable Chief Justice of the Court or to any other Judge (of 
this Court), by any member of the Bar, or the member of the civil 
society (any organization/group of the society) that a judgment is per 
incuriam (note: without the informant having any right or locus standi of hearing or 
the audience, until the matter is set out for hearing in the Court and the Court deems it 
proper to hear him), the Court in exercise of its inherent suo moto 
 
 
178 
power and the duty mentioned above (emphasis supplied) shall have the 
due authority and the empowerment to examine such a judgment, 
in order to ascertain and adjudge if the law laid down therein is 
incorrect or otherwise. And if the judgment is found to be per 
incuriam, it shall be dealt with accordingly. In such a situation (as 
earlier stated) it shall not be of much significance, as to who has 
brought the vice of the judgment to the notice of the Court or 
through which channel it has reached there. Rather, the pivotal 
aspect, the object, the concern and the anxiety of this Court 
should be to examine the judgment and if it is per incuriam to set 
the law right with considerable urgency. 
5. 
 
In the instant matter, as stated in the beginning, these 
proceedings have genesis in the note put forth by the Registrar of 
this Court, to which serious objection has been raised from the 
Judges’ side; in this behalf it may be held that though there is no 
specific provision in the Supreme Court Rules, 1980, enabling the 
Registrar to put up such note to the honourable Chief Justice of 
Pakistan, but at the same time there is no bar or clog upon the 
Registrar, being the principle officer of the court, not to bring to the 
notice of the Chief Justice of Pakistan or the Court as the case may 
be, that any decision earlier rendered by the Court is per incuriam 
or needs to be reviewed. Therefore, in view of what has been 
discussed, the objections about the maintainability of the present 
proceedings and the jurisdiction of this Court are overruled. And it 
is categorically held that judgments/decisions of this Court which 
are per incuriam are a class apart, to which the limitations or the 
rider of the Review (Article 188) or of the provisions of Article 184(3) 
are inapplicable and not attracted. These Articles and the 
 
 
179 
limitations thereof shall have no nexus for the exercise of the 
inherent jurisdiction of this Court and the discharge of its duty as 
prescribed above for the correction of the decisions per incuriam. 
Before parting with the topic, however, I feel urged to make a 
reference to a full Court meeting of this Court, (presumably held on 
26.4.2010) in which pursuant to an agenda item, in the context of 
conflicting judgments by various Benches of the Supreme Court, 
the office had put up a note envisaging that as the Supreme Court 
provides guidance to all the Courts in the country and its 
judgments are also binding upon them (Courts) thus, and any 
conflict in its judgments shall have far reaching effect (note: obviously 
conflicting judgments, shall fall within the purview of per incuriam). Upon the above 
note, it was resolved by the full Court that the Librarian and 
R&ROs of the Court should carry out an exercise in the matter and 
point out instances of the conflicting judgments, and while doing 
so, they may consult with eminent lawyers to take benefit of their 
experience. Data should be prepared and the matter be placed 
before the Hon’ble Chief Justice of Pakistan, who may like to 
constitute a larger Bench to resolve the conflicting issues. It was 
further resolved, if during the course of hearing of any case, an 
instance of conflicting judgments comes to the notice of the Bench, 
the Hon’ble Judges may refer the same to the Hon’ble Chief Justice 
for constitution of a larger Bench to resolve the conflict. This 
resolution of the full Court duly fortify my above point of view, that 
it is the duty of this Court to declare and discard a judgment as 
per incuriam and for this neither the source of its knowledge nor 
the confines of ordinary Review and/or Article 184(3) are of much 
relevance.  
 
 
180 
ENTITLEMENT TO PENSION 
(Question No.4) 
6. 
 
On the aspect of entitlement to the right of the Judges 
to receive pension, I am of the view that for the purposes of 
adjudging the same, and for the interpretation of the relevant 
provision of the Constitution i.e. Article 205 and Fifth Schedule 
thereto, and the apposite Presidential Orders; the legislative 
history of the law on the subject; the nature and object of pension; 
the (constitutional) convention and previous practice, and the 
contemporaneous understanding (prior to the case of Ahmed Ali U. Qureshi) of 
the law are quite germane factor (note: my brother has also highlighted the above 
concept but may be differently). However, as the requisite history and the 
text of laws has been comprehensively reproduced in the main 
judgment of my brother, therefore, by relying thereupon, I shall 
primarily restrict to the interpretation of such provisions (note: 
however, whenever required a part of such text shall be reproduced), by making 
reference to the laws in a chronological order. 
7. 
 
For the first time in the Subcontinent the honourable 
retired Judges of the High Court were held entitled to receive 
pension 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 be 
fixed (emphasis supplied) by His Majesty”. From the aforestated it is clear 
that the authority and the prerogative for the fixation of the 
entitlement was conferred upon His Majesty; meaning thereby that 
His Majesty was mandated to fix i.e. assess and settle such right 
and the entitlement. Pursuant to the above, the High Court Judges 
Order, 1937 was accordingly enforced on 18th March, 1937, and 
vide clause 17 thereof, the right of pension was fixed, but restricted 
 
 
181 
to those Judges only, who fulfilled the required criteria laid 
therein, e.g. (relevant being) upon the completion of service tenure of 
not less than 12 years. There can be no cavil, that without the 
above mandate of law, no retired Judge otherwise was entitled to 
receive the pension. And for the purposes of acquiring said right, 
or in other words to qualify for the pension, the test and the 
criteria prescribed in Order 1937 (ibid) was sine qua non, signifying 
that the right or entitlement to receive pension was subjected to 
and was conditioned by the requirement of a specific tenure. After 
the emergence of Pakistan, the entitlement to pension of the 
Judges 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 of 
leave of absence and pension as may from time to time to be determined by or 
under law made by Parliament and, until so determined, to such allowances and 
rights as are specified in the Second Schedule (emphasis supplied)”. It is manifest 
from the above that despite some change in language the 
entitlement 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 are 
quite analogous to the Indian provisions, inasmuch as quite 
significantly the Third Schedule thereto (of 1956 Constitution) stipulates 
“Every Judge of a High Court shall be entitled to such other privileges and 
allowances for expenses in respect of equipment and traveling upon first 
appointment, and to such rights in respect of leave of absence and pension as may 
be determined by the President (emphasis supplied by me).” 
 
The only main difference in the Indian provision and our 
constitutional dispensation was, that there (India) the determination 
of 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 the 
abrogation of 1956, the Constitution 1962 came into force and as 
per relevant Article (it is prescribed) “124. Remuneration, etc., of Judges.—
The remuneration and other terms and conditions of service of a Judge of the 
Supreme 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 be 
entitled to such privileges and allowances, and to such 
rights in respect of leave of absence and pension, as may be 
determined by the President, and until so determined, to the 
privileges, allowances and rights to which, immediately 
before the commencing day, the Judges of the High Court 
of the Province were entitled.” 
It is obvious from the above, that the authority, of determination of 
the entitlement to the pension of the Judges as per the 
Constitutional command, was conferred and bestowed upon the 
President, i.e. it shall be the President who shall decide, about 
their entitlement. Pursuant thereto, Presidential Order P.O.1/1968 
was issued, prescribing (see clause 13) the qualifications and the 
criteria for the said entitlement, which vividly and unmistakably is 
dependent upon the length of service of the Judges. Anyhow, on 
account of the annulment of the 1962 Constitution and upon 
proclamation of emergency on 25th day of March, 1969, a 
Provisional Constitutional Order dated 14th April, 1969, was 
introduced, whereunder the President of Pakistan enforced 
P.O.9/1970, wherein the entitlement (right) of the Judges in respect 
of their pension was stipulated as under:- 
 
“13. 
Condition of admissibility of pension.—A 
Judge shall, on his retirement, resignation or removal, be 
 
 
183 
paid a pension in accordance with the provisions of this 
Order if he has--- 
(a) 
completed not less than five years of service 
for pension and attained the retiring age; or 
(b) 
completed not less than five years of service 
for pension and, before attaining the age, 
resigned; or 
(c) 
completed not less than five years of service 
for pension and, before attaining the retiring 
age, either resigned, his resignation having 
being medically certified to be necessitated 
by ill-health or been removed for physical or 
mental incapacity: 
 
Provided that, for the purpose of clause (a) of Part I 
of the First Schedule a deficiency of three months or less in 
the service for pension as Judge shall be deemed to have 
been condoned.” 
In the interim Constitution of Pakistan 1972 as per Article 207, the 
entitlement of every retired Judge remained conditional to the 
determination by the President (emphasis supplied). 
8. 
 
On the promulgation of the “the Constitution” no vital 
and 
important 
change 
was 
introduced 
(therein) 
about 
the 
entitlement of the retired Judges, as no departure from the earlier 
law was visibly made. And Fifth Schedule (note: the interpretation of the Fifth 
Schedule is critical) to Article 205 prescribed:- 
 
“1…………………………………………………….... 
 
2. 
Every Judge of a High Court shall be 
entitled to such privileges and allowances, and to such 
rights in respect of leave of absence and pension, as may be 
determined by the President, and until so determined, to the 
privileges, allowances and rights to which, immediately 
before the commencing day, the Judges of the High Court 
were entitled. 
 
3. 
The pension payable to a retired Judge of 
the Supreme Court shall not be less than Rs.1,500 per 
 
 
184 
mensem or more than Rs.1,950 per mensem, depending on 
the length of his service as Judge in that Court or a High 
Court:” 
However, by virtue of the Constitution (Twelfth Amendment) Act 
1991 dated 27.7.1991, Paragraph 3 was substituted to read as 
below:-  
“3. 
The Pension payable per mensem to a Judge of a 
High Court who retires after having put in not less than 
five years service as such Judge shall not be less or more 
than the amount specified in the table below, depending 
on the length of his service as Judge and total service, if 
any, in the service of Pakistan: 
 
Provided that the President may, from time to 
time, raise the minimum or maximum amount of pension 
so specified” 
 
Then came into force P.O.2/1993 on 19th October, 1993 and it is 
quite significant to point out, that this P.O. has been issued under 
proviso to 3rd Paragraph of the Fifth Schedule (Paragraph 3 which was 
added 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 the 
Constitution of the Islamic Republic of Pakistan relating to the remuneration of 
the Judges of the Supreme Court and High Courts provides that the President 
may, from time to time, raise the minimum or maximum amount of pension so 
specified in the said paragraph”. Whereas the pension related part of 
P.O.2/1993 is:- 
“2. 
Pension.---(1)…………………………………………... 
(2) 
The minimum and maximum monthly pension of the 
Chief Justice of a High Court shall be Rs.9,800 and 
Rs.12,250 respectively and that of every other Judge of a 
High Court shall be Rs.8,722 and Rs.10,902 respectively.” 
 
 
 
185 
Finally P.O.3/1997 was enforced on 12.2.1997, which has been 
issued under Paragraph 2 of the Fifth Schedule, and it contains 
the provisions about the entitlement and the admissibility 
(emphasis supplied) of pension of retired Judges of the High Courts as 
below:- 
“14. 
Condition or admissibility of pension.—A Judge 
shall, on his retirement, resignation or removal, be paid a 
pension in accordance with the provisions of this Order if 
he has--- 
(a) 
completed not less than five years of service 
for pension and attained the retiring age; or 
(b) 
completed not less than five years of service 
for pension and, before attaining the age, 
resigned or sought retirement; or 
(c) 
completed not less than five years of service 
for pension and, before attaining the retiring 
age, either resigned, his resignation having 
being medically certified to be necessitated 
by ill-health or been removed for physical or 
mental incapacity or been allowed by the 
President for sufficient cause to retire.” 
The above in a sequence accomplish the legislative history, in 
respect of the genesis, and the evolution of the pensionary right 
and the entitlement of the Hon’ble retired Judges of the High 
Courts throughout. And as stated earlier it is in the context of this 
legal backdrop and the development; the nature and purpose of 
pension; the convention etc.; and contemporaneous understanding 
of the law, that the evaluation of the right/entitlement of pension 
of the Judges should be made and the provision(s) of Article 205 
and Fifth Schedule thereof, and P.O.3/1997 (alongwith other relevant P.Os.) 
 
 
186 
has to be applied and construed.  
9. 
 
Since the Government of India Act, 1935 which is the 
origin of the retired Judge’s right to receive pension, and from all 
the laws that have followed, it is vivid from the contents, the text, 
the letter and spirit thereof (such laws) that the said right is neither 
absolute nor unqualified. Here I would briefly mention that the 
pension is not the bounty from the State/employer to the 
servant/employee, but it is fashioned on the premise and the 
resolution that the employee serves his employer in the days of his 
ability and capacity and during the former’s debility, the latter 
compensates him for the services so rendered. Therefore, the right 
to pension has to be earned and for the accomplishment thereof, 
the condition of length of service is most relevant and purposive. In 
the case of the employments which are governed by the service 
rules, there are provisions laying down the criteria and the 
qualification for that purpose; and where the employments are 
regulated by the contracts, it is so specified in the terms and 
conditions of such contracts. Until such qualifications are met and 
the contractual stipulations are satisfied (note: as the case may be), no 
servant/employee is entitled to pension. And the Judges are no 
exception to the above rule. Therefore, a Judge per se on the basis 
of his appointment shall not become entitled to the pension, rather 
he has to earn that right by meeting the qualifications and by 
fulfilling the requirements stipulated by the legal instruments in 
force at the relevant point of time (or from time to time). In all the laws 
mentioned above, there are some very important words and 
expressions which have been used, and for the comprehension and 
interpretation of such provisions and for the purposes of resolving 
 
 
187 
the issue, it is imperative that meaning of the words/expressions 
should 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 which 
has been fixed and determined either by the law or the authority 
designated in the law, therefore, these two words are of immense 
importance. According to various dictionary meaning fix is defined 
as, to assess, to determine, to settle (see e.g. MS Dictionary), whereas, 
the 
word 
determine 
connotes; 
to 
fix 
conclusively 
and 
authoritatively; to come to a decision, to settle, to resolve, to fix the 
form or character before hand; ordain; to find out the nature, limit, 
dimension and scope (see MS Dictionary and Merriam and Webster Dictionary). In 
view of the aforestated position, I have wee hesitation to hold that 
these two (words) are analogous and interchangeable terms/words. 
Thus from the above it is clear that, it is only such right which is 
determined by the President which entitles the Judges to pension; 
if there is no determination there is no right and if the 
determination is qualified, the right is not absolute, but conditional 
thereto. Therefore, in the context of the instant proposition, it is 
hereby conclusively held that such right is subject to, dependent 
upon, and circumscribed by the condition of determination; and 
when the said determination has prescribed certain qualifications 
and 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. I 
find myself in agreement with the plea raised from the Judges side, 
that the provisions of Paragraph 2 of the Fifth Schedule are 
independent of Paragraph 3, but none, as repeatedly queried, was 
 
 
188 
able to answer and point out if the President has ever made any 
determination about the entitlement/right to receive pension with 
respect to those Judges who have the term of service less than five 
years. Undoubtedly while considering the contents of Paragraph 3 
of the Fifth Schedule and also the relevant provisions of 
P.O.3/1997, the determination of the right and the entitlement is 
only restricted to, with respect to those Judges who have served for 
five or more years and for none else. I am absolutely unimpressed 
by the argument from the Judges side that the determination has 
been made as per the provisions of P.O.2/1993 reproduced above; 
or for that purpose Paragraph 3 of the Fifth Schedule or clause 14 
of 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 has 
nothing to do with the determination contemplated by Paragraph 2 
of the Fifth Schedule, rather it (P.O.2/1993) is pursuant to Paragraph 
3 of the Schedule, as it is so clear from the title thereof and such 
Presidential Order is only meant for and caters for the Judges, 
whose right have been determined as per the force of Paragraph 2 
of the Fifth Schedule. Now considering the right to pension in 
terms of the convention etc. There has not been a single instance 
(present case is an exception) in the Subcontinent that a retired Judge 
who had not completed the requisite term of service would ask for 
or was granted the pension, which thus had developed into a 
convention and this was also the contemporaneous understanding 
of the law, that is why the legal illumenorions of their time, who 
had lesser term of service than required never pressed for pension 
(this aspect has also been highlighted by my brother). Before parting with the 
proposition, passingly it may be mentioned that in India, almost in 
 
 
189 
a similar factual scenario, an akin issue, cropped up, and in view 
of the provision of Article 221 ibid and Section 14 of the Indian 
(relevant) law, which prescribed a particular tenure for the 
entitlement to pension of the High Court Judges; the Court seized 
of the matter in that case reported as Pana Chand Jain Vs. Union 
of India and others (AIR 1996 Rajasthan 231) held:- 
“Reading the aforesaid provisions (Section 14) with Part-I of 
the First Schedule to ‘the Act’ it is evident that the amount 
of pension payable to a Judge of the High Court is linked 
with the length of service rendered by him. This very basis 
of fixation of amount of pension is challenged by the 
petitioner………………………………………………………...” 
“Thus, framers of the Constitution, who laid down the 
eligibility criteria in Article 217 of the Constitution made 
distinction while determining the amount of pension and 
other allowances payable to the High Court Judges. That is 
why they made separate provision by enacting Sub-Clause 
(2) of Article 221. The leave of absence and the pension 
and other allowances payable to High Court Judges was 
left to be determined by Parliament by enactment of law. 
The framers of the Constitution did not take upon the task 
of fixing the amount of pension themselves as they 
undertook this task while fixing the amount of salary. The 
very scheme of the Constitution suggests that the amount of 
pension to be payable to a High Court Judge is to be left to 
the wisdom of the Parliament. This is the mandate of the 
Constitution. Therefore, the contention based on the 
provisions of Constitution and particularly the provisions 
of Article 217 is misconceived. If the argument is accepted, 
it would lead to absurd result inasmuch we may have to 
come to the conclusion that the framers of the Constitution 
were not aware about the distinction introduced and made 
by themselves in Article 221(2) in respect of leave of 
absence and pension payable to the High Court Judges. 
Therefore, there is no merit in the argument that the 
provision of Section 14 of the Act is contrary to law or 
 
 
190 
violative of Articles 217 and 221 of the Constitution.” 
 
WHETHER “THE JUDGMENT” IS PER INCURIAM AND 
THE 
NEXUS 
OF 
THE 
PRINCIPLES 
OF 
LOCUS 
POENITENTIAE AND LEGITIMATE EXPECTATION ETC. 
(Question No.5) 
 
10. 
 
For adjudging the validity of the law laid down in “the 
judgment” (PLD 2008 SC 522), it seems expedient to make a brief probe 
into the facts of that case. Justice (Retd.) Ahmed Ali U. Qureshi 
retired as a Judge of the Sindh High Court, without having a 
period of five years to his service credit (as High Court Judge). He (in the 
year 1994) filed a writ petition in the Sindh High Court, claiming 
entitlement to the pension, notwithstanding the length of his 
service, which claim of the learned (Retd) Judge was accepted by 
the learned High Court vide its judgment dated 2.2.1995 (reported as 
PLD 1995 Kar 223) holding “We are, consequently of the view that rights and 
privileges admissible to the petitioner in respect of his pension are now governed 
under President's Order 2 of 1993”………………“In the result, the petition is 
allowed and the respondents are liable to fix the petitioner's pension at the 
maximum pension as allowed under President's Order No. 2 of 1993”. This 
verdict has been affirmed by this Court in “the judgment” (PLD 2008 
SC 522) and in relation to the proposition, about the entitlement of 
the pension of the Judges, while interpreting Article 205 of the 
Constitution and the Fifth Schedule thereto, this Court came to 
the conclusion that Paragraphs 2 and 3 of the Schedule are two 
independent provisions (note: no cavil with the above). Besides, under 
Paragraph 2 (of the Schedule) ‘Every Judge’ is entitled to pension, 
irrespective of his length of service and Paragraph 3 only relates to 
those Judges who have served for more than five years; the latter 
Paragraph in no manner debars and/or preclude the other Judges, 
 
 
191 
who have served for less than five years to receive pension. In this 
regard 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 the 
factum that this entitlement has been affirmed and recognized by 
P.O.7/2008.  This Court also implied (in that decision) that the 
expression “every Judge” appearing in Paragraph 2 of the Fifth 
Schedule, 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 and 
established. In my view “the judgment” (PLD 2008 SC 522) is per 
incuriam and for this purpose my opinion/exposition on Question 
No.4 (ibid) should be read as integral part herein, and in the light 
thereof, I hereby enumerate the fundamental errors of “the 
judgment” which has rendered it per incuriam: (a) the legislative 
history of the law on the field has been ignored and overlooked by 
the Court (b) the true nature, the concept and the purpose of the 
pension has been disregarded (c) the convention and the previous 
practice which has the force of law, in that, no pension was ever 
paid or claimed by the Judges who did not qualify the test of the 
law, has been elided (d) the most important and crucial 
words/expression 
of 
the 
relevant 
laws 
such 
right 
and 
fix/determination of such right, by the President has not been 
adverted to at all (e) once holding that the provisions of Paragraphs 
2 and 3 of the Fifth Schedule are independent, still the justification 
of entitlement has been founded upon either of the two Paragraphs 
by erroneously reading those with P.O.3/1993 (f) P.O.2/1993 
undisputedly was issued under Paragraph 3 of the Fifth Schedule, 
 
 
192 
yet it has been misconceived that the determination by the 
President has been made on the basis thereof which could only be 
in the context of the Paragraph 2. In this behalf conspicuous 
omission has been committed, by not adverting to and taking in 
account (reproducing) the title part of P.O.2/1993, which reads as 
“Whereas, the proviso to third paragraph of the Fifth Schedule to the 
Constitution of the Islamic Republic of Pakistan relating to the remuneration of 
the Judges of the Supreme Court and High Courts provides that the President 
may, from time to time, raise the minimum or maximum amount of pension so 
specified in the said paragraph” which clearly contemplated that the 
P.O. was only restricted to Paragraph 3 (g) P.O.7/2008 was 
resorted to, which was subsequently declared as ultra vires and 
non est by this Court in the Sindh High Court Bar Association case 
(h) the contemporaneous understanding of law and the factor that 
during the long period of about around 50 years, no Judge having 
a lesser tenure than the one prescribed by law for the time being in 
force, ever claimed or approached the Court, for the pension have 
grossly eluded the attention of the Court. 
11. 
 
Now attending to the proposition raised from the 
Judges side, that as a vested right has been created in their 
favour, on account of the judgment thus on the basis of the 
doctrine of past and closed transaction, locus poenitentiae, and 
legitimate expectation, such right cannot be stultified and taken 
away which stands protected in perpetuity; suffice it to say that as 
per the settled law, no perpetual right can be created in favour of a 
citizen/a person, which (right) is against the law. The right to 
pension, which the judges claim to have been created in their 
favour, undoubtedly is founded upon “the judgment” (PLD 2008 SC 
 
 
193 
522). Obviously, this right has to sustain and cease with the fate of 
the said judgment. If the law declared in “the judgment”, is 
pronounced to be per incuriam (as has been done in the matter) “the 
judgment”, and the law enunciated therein stand extinguished and 
with the annihilation of “the judgment”, the right also vanish and 
the 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 this 
Court. 
 
In the context of the plea that the right of pension can 
sustain, I intend to analyze the doctrine of locus poenitentiae; my 
learned brother in his judgment has defined and elucidated the 
principle of locus poenitentiae, however at the cost of repetition, it 
is held that locus poenitentiae conceptually connotes, that 
authority which has the jurisdiction to pass an order and take an 
action, has the due authority to set aside, modify and vary such 
order/action, however there is an exception to this rule i.e. if such 
order/action has been acted upon, it creates a right in favour of 
the beneficiary of that order etc. and the order/action cannot 
thereafter be set aside/modified etc. so as to deprive the person of 
the said right and to his disadvantage. However, it may be 
pertinent to mention here, that as pointed out in the preceding 
part, no valid and vested right can be founded upon an order, 
which by itself is against the law. In this regard, reference can be 
made to the judgment reported as The Engineer-in-Chief Branch 
through Ministry of Defence, Rawalpindi and another Vs. 
Jalaluddin (PLD 1992 SC 207), the relevant part whereof reads as 
under:- 
 
 
194 
“It was further observed that locus poenitentiae is the 
power of receding till a decisive step is taken but it is not a 
principle of law that order once passed becomes 
irrevocable and past and closed transaction. If the order is 
illegal then perpetual rights cannot be gained on the basis 
of such an illegal order.” 
 
Further dictas in this behalf are:- Abdul Haque Indhar and others 
Vs. Province of Sindh through Secretary Forest, Fisheries and 
Livestock Department, Karachi and 3 others (2000 SCMR 907) 
and  M/s Excell Builders and others Vs. Ardeshir Cowasjee and 
others (1999 SCMR 2089). Besides, the principle of locus 
poenitentiae (with its exception), in my view, primarily has the nexus 
and application to administrative orders and actions, and would 
not apply to the judicial decisions. The judicial decision can only 
be invalidated, quashed and annulled, through the process of 
appeal, revision and review, if such remedies are available to an 
aggrieved party under the express provisions of law. And once such 
decision has attained finality it operates as res judicata inter se the 
parties to the lis (note: the decisions however rendered by the superior Courts in so far 
enunciating the law has the binding effect also on all the concerned). Therefore, such a 
decision until the law declared therein is altered in the appropriate 
jurisdiction of the Court or the decision is declared as per incuriam, 
and is squashed it shall have the due effect. But where the 
judgment is set aside as in this case; the rule of locus poenitentiae, 
alongwith the exception, shall not be applicable, because as 
mentioned 
earlier, 
the 
doctrine 
primarily 
belongs 
to 
the 
administrative 
domain 
of 
the 
State 
and 
is 
restricted 
to 
administrative orders/actions alone. In this context, reference can 
 
 
195 
be made to Clause 21 of the General Clauses Act, 1887, which 
provision is reproduced as below:- 
“Power to make, to include power to add to, amend, vary 
or rescind, orders, rules or bye-laws. Where, by any 
Central Act or Regulation, a power to issue notifications, 
orders, rules, or bye-laws is conferred, then that power 
includes a power, exercisable in the like manner and 
subject to the like sanction and conditions (if any), to add 
to, amend, vary or rescind any notifications, orders, rules 
or bye-laws so issued.” 
 
While interpreting such provision, it has been held by Sindh High 
Court 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 be 
interpreted ejusdem generis, meaning thereby that it will 
be taken to be in the sense of an order issued by the 
Legislature or the Executive. Moreover, as a rule of 
construction the words used  in a statute must be 
construed according to their context and as such other 
provisions in that statute would be very much relevant. 
Section 21 should, therefore, be read in the light of 
sections 14 to 20 and sections 22 to 24 and then it will be 
clear that the word "order" in that section refers to 
Legislative or Executive orders and  not a judicial order. I 
am fortified in my opinion by a Full Bench decision of 
Nagpur High Court reported as Venkatesh Yashwant 
Deshpande v. Emperor AIR 1938 Nag. 513. I will 
reproduce with advantage the following observations in 
this judgment:-- 
"The meaning of the word 'orders' becomes 
clear when section 21 is read in conjunction 
with section 24. These considerations make it 
clear that the word 'order' used in section 21, 
 
 
196 
General Clauses Act, is a legislative or 
statutory order, that is an order having the 
force of law. The order passed under section 
401 granting remission of punishment falls in 
a 
category 
different 
from 
the 
order 
contemplated in section 21, General Clauses 
Act. The applicability of that section is, 
therefore, highly doubtful. " 
A learned Single Judge of the Lahore High Court also took 
the view that section 21 of the General Clauses Act could 
not be pressed into service in relation to orders passed in a 
judicial capacity. Reference in this connection may be 
made to the case of Muhammad Ibrahim and 2 others v. 
Municipal Committee, Chiniot through its Chairman 1990 
ALD 655.” 
 
 
In this behalf, reliance can also be placed upon the judgment 
reported as Venkatesh Yeshwant Deshpande Vs. Emperor (AIR 
1938 Nagpur 513) wherein it has been held as under:- 
“It is a well recognized rule of construction that the words 
used in a statute must be interpreted according to their 
context. Section 21 of the General Clauses Act, must 
therefore be read in light of Ss 14 to 20 which precede Ss 
22 to 24 which follow. These considerations make it clear 
that the word ‘orders’ used in section 21 is a legislative or 
statutory order, that is an order having force of law.” 
 
Moreover, in the A.I.R. Manual, 5th Edition 1989 by V.R. Manohar 
and W.W. Chitaley; the query at hand is addressed at on page 143 
of its book. It states that Section 21 of the General Clauses Act 
does not apply to a decision as to the rights of parties made by 
particular judicial or quasi judicial or administrative authority. 
Orders spoken in the section are those in the nature of 
subordinate legislation.  
 
 
197 
  
My own reading of the provisions of clause 21 of the General 
Clauses Act with reference to the object and purpose of the Act and 
its various provisions leads me to form a view that, the rule of 
locus poenitentiae, for the purposes of the protection of the rights 
under the said clause, is only restricted to the administrative or 
executive orders/actions, and in no way is attracted to the judicial 
decisions, particularly where a decision is declared as per incuriam 
and is specifically set aside. Upon the above principles, and the 
reasoning the doctrine of past and closed transaction, shall also 
not attract hereto, specially because no right can in perpetuity 
either be created or be continued on the basis of a law, which has 
ceased 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 has 
been coined and designed by the Courts primarily for the exercise 
of their power of judicial review of the administrative actions. As 
per Halsbury’s Laws of England, Volume 1(1), 4th Edition, para 81, 
at pages 151-152, it is prescribed:- 
“A person may have a legitimate expectation of being 
treated in certain way by an administrative authority even 
though he has no legal right in private law to receive such 
treatment. The expectation may arise from a representation 
or promise made by the authority including an Implied 
representation or from consistent past practice.” 
 
In R. Vs. Secretary of State of Transport Exporte Greater 
London Council (1985)3 ALL. ER 300, it is propounded that:-  
 
“Legitimate, or reasonable, expectation may arise from 
an express promise given on behalf of a public authority 
or from the existence of a regular practice which the 
 
 
198 
claimant can reasonably expect to continue. The 
expectation may be based on some statement or 
undertaking by or on behalf of the public authority which 
has the duty of taking decision.” 
 
In the judgment reported as Union of India Vs. Hindustan 
Development Corporation (1993)3 SCC 499 at 540, it has been 
held:-  
“The legitimacy of an expectation can be inferred only if 
it is founded on the sanction of law or custom or 
established procedure followed in regular and natural 
sequence. It is also distinguishable from a genuine 
expectation. Such expectation should be justifiably 
legitimate and protectable. Every such legitimate 
expectation does not by itself fructify into a right and 
therefore it does not amount to a right in the 
conventional sense.”  
 
  
It is thus clear from the above that the doctrine only has 
nexus to administrative decisions and actions, and no one can 
have resort to it, for the purposes of claiming any right found upon 
any decisions of this Court, which decision and the law laid down 
therein is found by the Court to be per incuriam. Therefore, I do not 
find any merit in the plea raised by the Judges side, that their 
right to receive pension in future is protected on the principle of 
legitimate expectation despite the fact that “the judgment” has 
been declared per incuriam and set aside. 
WHETHER ANY PROTECTION IS AVAILABLE TO THE 
JUDGES  ON  THE RULE OF EQUALITY AS ENSHRINED 
BY ARTICLE 25 OF THE CONSTITUTION 
(Question No.6) 
 
12. 
 
For the above question, it has been argued from the 
Judges side that they shall be discriminated qua the Judges of this 
 
 
199 
Court as also the Judges of the High Courts who are entitled to 
pension in terms of Paragraph 3 of the Fifth Schedule and also 
clause 14 of P.O.3/1997, as having served for a term of five years 
or more. There can be no two opinions, that the reasonable 
classification and differentia is permissible under Article 25 of the 
Constitution. The Judges of this Court have been treated by the 
Constitution itself as a class apart from the Judges of High Courts 
for the purpose of pension, and by no conceivable reason, it can be 
held that both the categories of the Judges i.e. Supreme Court and 
High Court forms part of one and the same class. Therefore, the 
plea with reference to the Judges of this Court has no force. Now 
examining the argument in relation to those Judges who have 
completed five years tenure; it may be mentioned that they are 
again qualified to receive the pension under the mandate of the 
Constitution and in this behalf Paragraph No.2 of the Fifth 
Schedule to the Constitution, and clause 14 of P.O.3/1997 are 
very much clear; and I have already held (see discussion on entitlement) that 
the right to receive the pension is not absolute; it has to be earned 
and it also is not a bounty. Therefore, the Judges lacking the 
qualification prescribed by law for acquiring the right cannot 
compete with those who fulfill the requirement. It may be pertinent 
to state here that some of the Judges have a service tenure of one 
year/two years/three years; how conceivably they can compare 
themselves, with those who have the prescribed tenure of five years 
and plead discrimination. Therefore, the submission made is 
unfounded and is hereby discarded.  
 
 
 
 
200 
WHETHER THIS JUDGMENT SHALL HAVE 
PROSPECTIVE OR RETROSPECTIVE EFFECT 
(Question No.7) 
 
13. 
 
While assessing this question I have the privilege and 
advantage of going through the note of my learned brother 
Muhammad Ather Saeed, J. and agree thereto, therefore I shall not 
repeat what my brother has already expressed. However I would 
like to add; that in the ordinary course, the judgment(s) 
pronounced by this Court declaring and enunciating law has 
prospective effect, but still, the prospective or the retrospective 
application of a particular judgment depends upon the facts and 
circumstances of each case, and it is for the Court to decide (in each 
case), if the judgment should be made applicable prospectively or 
otherwise. In forming this opinion, I am fortified by the law laid 
down in the case reported as Malik Asad Ali and others Vs. 
Federation of Pakistan through Secretary, Law, Justice and 
Parliament Affairs, Islamabad and others (PLD 1998 SC 161 at 
page 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 us 
earlier, this Court while adopting an interpretation of the provision of the law or 
the Constitution which is at variance from the existing view, it is only declaring 
the correct law as an apex Court. By doing so, it neither legislates any new law 
nor amends the existing law. Therefore, while interpreting a provision of law or 
the Constitution, this Court can also provide the date from which the 
interpretation given by it is to come into effect, keeping in view the nature of the 
provision it is interpreting, the likelihood of possible prejudice which may be 
caused to an individual or a body of individual and the requirement of justice in 
the case (emphasis supplied)”. In Malik Asad Ali’s case (supra), quite a few 
precedents on the subject have been cited. In my view the present 
 
 
201 
decision warrants prospective application i.e. from the date of its 
pronouncement and I have reasons to form such an opinion. 
However, before propounding those reasons I intend to state that a 
judgment per incuriam is not a judgment without jurisdiction and 
thus it is neither void nor nullity in the eyes of law therefore, the 
fallout of a void verdict/order shall neither follow nor can be 
resorted to; moreover in the context of this case, I find no 
relevance, to compare the interest of the Judges with the State 
and/or the public interest, on the touchstone of the maxim “salus 
populi est supreme lex” or on the rule that the individual interest has 
to give way to the public welfare and interest. Be that as it may, my 
reasons for giving this judgment prospective effect are:- majority of 
the Judges have not even approached this Court to seek the relief 
for the grant of pension, rather it is only in terms of paragraph 
No.34 of “the judgment” which provides “In consequence to the above 
discussion, 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 allowed 
and the petitioners/applicants in these petitions and miscellaneous applications, 
along with all other retired Judges of the High Courts, who are not party in the 
present proceedings, are held entitled to get pension and pensionary benefits with 
other privileges admissible to them in terms, of Article 205 of the Constitution 
read with P.O.No.8 of 2007 and Article 203-C of the Constitution read with paras 
2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of 1997 from the date 
of their respective retirements, irrespective of their length of service as such 
Judges (emphasis supplied)” that they were contacted by the Registrar of 
the respective High Courts (as this is the stand taken by them and I have no reasons 
to disbelieve) and they were offered the pension. Some of the 
beneficiaries of “the judgment” are the widows of the retired 
Judges. It is nobody’s case that they have practiced and played any 
 
 
202 
fraud or committed some foul in gaining and procuring the 
pension, so as to disentitle them to retain such gain, on the known 
principle, that no one should be allowed to hold the premium of his 
wrong/fraud and/or retain ill gotten gains. Rather to the contrary 
they have received the monies under the judicial dispensation by 
the apex Court, which was considered as valid enunciation of law, 
till the present decision and the pension was paid and received by 
them 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 High 
Court(s) and also in other judicial circles, rather it was a publicly 
known fact, yet the verdict was left outstanding for a considerably 
long period, thereby allowing the Judges to derive benefit of “the 
judgment”; I am not persuaded that the Registrar of this Court or 
for that matter all the concerned, at all the levels, including the 
learned Members of this Bench, who graced the respective High 
Courts of the country as the Chief Justices were unaware of “the 
judgment”, but still no timely action was initiated to set the wrong 
law, right and the time was allowed to pass. If a wrong and an 
error has been committed in the declaration of law (PLD 2008 SC 522), 
the responsibility rests on this Court and it is fundamental rule of 
law and justice, that the act of the Court shall prejudice none; in 
my view this principle tilts in favour of the Judges, rather the 
State. Because on account of the lapse of considerable time, most 
of the Judges might have spent and consumed the amount 
received by them, as they are expected to have decent living after 
their retirement; the amount so received might have expended on 
the education and marriages of their children; the possibility that 
 
 
203 
they might have acquired an abode to spend rest of their life to 
avoid dependency on their scion cannot be ruled out. This amount 
might have been utilized on their daily expense and sustenance 
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 to sell their assets (shelter) and belongings. Those who 
have no assets or saving might be compelled and constrained to 
entreat others or borrow which would definitely not behove with 
their status and position as the retired Judges; baring few, most of 
them are of old age and I am not sure they have the ability and 
capacity, at such an advance age to generate the requisite amount 
for the refund. Enforcing the refund of the amount upon them may 
cause innumerable predicament for them and may lead to a very 
pathetic and a ludicrous situation for them. And all those who 
have once graced the superior judiciary, might in this scenario be 
rendered destitute and precarious and deprived of even a modest 
life and living in future. But for the commission of no wrong, fraud, 
foul and fault on their part. Rather as stated earlier an error and 
mistake perpetrated by this Court. Therefore, I am of the 
considered view that the present judgment be given prospective 
effect. 
14. 
 
I also do not find that in this matter the principle of 
restitution, which in the normal situation where a decision is 
reversed should apply because the judgment is not being set aside 
on the approach of any aggrieved party, but on its own motion by 
this Court for the purposes of setting the wrong law correct. 
Furthermore, I am not impressed by a thought that as “the 
judgment” was rendered during the period when the real judicial 
 
 
204 
set up was lacking in country, therefore the recovery is justified, 
because to my mind all such decisions made and verdicts given in 
between the period of 3rd March, 2007 and 23rd March, 2009 have 
been saved as per the doctrine of defacto jurisdiction (see para 178 of the 
Sindh High Court Bar Association case) however without debaring in any 
manner this Court in its appropriate/proper jurisdiction, including 
its suo moto jurisdiction to examine such decisions and to set 
aside those, inter alia, on the basis of rule of per incuriam; and “the 
judgment” is no exception to it, however, it shall be perilous to 
impute motives to the Judges in rendering the judgments. Be that 
as it may, in not conferring retrospective effect to the present 
judgment and I am persuaded by the law laid down by this Court 
in The Engineer-in-Chief Branch through Ministry of Defence, 
Rawalpindi and another Vs. Jalauddin (PLD 1992 SC 207) (to 
which reference has also been made by my learned brother in his judgment) wherein while 
considering the aspects of locus poenitentiae and past and closed 
transaction, with regard to an order involved in that case, which 
was declared to be illegal, it has been held as under:-  
“Locus poenitentiae is the power of receding till a decisive 
step is taken. But it is not a principle of law that order once 
passed becomes irrevocable and it is past and closed 
transaction. If the order is illegal then perpetual rights 
cannot be gained on the basis of an illegal order. In the 
present case the appellants when came to know that on the 
basis of incorrect letter, the respondent was granted 
Grade-11, they withdrew the said letter. The principle of 
locus poenitentiae would not apply in this case. However, 
as the respondent had received the amount on the bona fide 
belief, the appellant is not entitled to recover the amount 
drawn by the respondent during this period when the letter 
remained in the field.” 
 
 
205 
Therefore following the above dictum, I hold that the amount so far 
received by the Judges should not be recovered, from them, as it 
shall be oppressive and more prejudicial to the Judges, as against 
the respondent of the case i.e. (of PLD 2008 SC 522) and the State, 
which (State) even never ever filed any review against “the 
judgment”, even after the success of the movement for the 
restoration of real judiciary. And even now the recovery has not 
been pressed for before us by the State. However, as now the 
judicial verdict (PLD 2008 SC 522) under which the Judges had and 
have been receiving the pension, is declared per incuriam and is set 
aside, obviously their right to receive the pension has ceased and 
come to an end, rather they are disentitled to receive pension in 
future. And as mentioned earlier, such right for the future receipt 
of pension is not protected under any principle, rule and on 
jurisprudential plain. 
15. 
 
While summation of my this discourse, I want to state 
that in the judgment authored by my brother Anwar Zaheer 
Jamali, J. it has been held that for the purposes of the entitlement 
to pension, there is no distinction between “a Judge” and an 
“Additional Judge” of the High Court. In this behalf, my brother 
has taken into account the definition of a “Judge” provided in 
Article 260 of the Constitution and reference to certain P.Os. have 
also been made, the definition of remuneration etc. has also been 
considered, but with due deference to my learned brother, I am not 
inclined to endorse such a view and the reasoning; because in my 
humble estimate, the object and purpose of such appointment (see 
Article 197) is different and the definitions are only meant for the 
purposes of the functions/privileges and remuneration of an 
 
 
206 
“Additional Judge” during the course of his service as Additional 
Judge, but does not entitle him for pension even if he has served 
for five years. Anyhow as in the present scenario, in my view the 
above question is only rendered academic and as we have not 
received much assistance on the point, therefore, I shall leave the 
issue open and left to be resolved in some appropriate matter. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
JUDGE 
                                                 207 
 
  
EJAZ AFZAL KHAN,J:-  I have gone through the judgment authored 
by my brother Mr. Justice Anwar Zaheer Jamali. Though I agree with the 
judgment yet I would like to record reasons of my own on certain points.  
2.  
The entire argument of the learned counsel appearing to defend 
the judgment rendered in the case of “Accountant General, Sindh and 
others. Vs. Ahmed Ali U. Qureshi and others” (PLD 2008 SC 522) hinges on 
the words “every judge of a High Court” used at the start of paragraph 2 
of Fifth Schedule to the Constitution of the Islamic Republic of Pakistan, 
1973.  The main thrust of their argument is that when it has been provided 
in the said paragraph that every judge of a High Court shall be entitled to 
such privileges and allowances and to such rights in respect of leave of 
absence and pension the legislature in its wisdom can never be said to 
have conditioned the incidence of such rights with having put in not less 
than five years of service as such judge. It, according to them, recognized 
the entitlement of every judge to the privileges and allowances and such 
rights in respect of leave of absence and pension irrespective of their 
length of service, therefore, it has to be determined by the President and 
that 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 all 
the paragraphs of the Schedule are read in their correct perspective, 
these arguments appear to be fallacious both legally and logically. What 
paragraph-2, in simple words, provides is that every judge of a High Court 
shall be entitled to such privileges and allowances and to such rights in 
respect of leave of absence and pension as may be determined by the 
President and until so determined the judges of the High Court would get 
what they were, immediately before the commencing day, entitled to. 
Now the question arises what the judges of the High Court entitled to 
before the commencing day of the Constitution. The answer can well be 
found in paragraph-13 of Order IX of 1970. The relevant provisions of the 
Ordinance read as under:- 
 
208 
“13.  
 Conditions of admissibility of pension. – A Judge shall, on 
his retirement, resignation or removal, be paid a pension in 
accordance with the provisions of this Order if he has ---- 
a)  completed not less than five years of service for pension 
and attained the retiring age; or  
b)   completed not less than ten years of service for 
pension and, before attaining the age, resigned; or  
c)   completed not less than five years of service for 
pension and, before attaining the retiring age, either resigned, his 
resignation having been medically certified to be necessitated by 
ill-health, or been removed for physical or mental incapacity;  
Provided that, for the purpose of clause (a) of Part I of the 
First Schedule a deficiency of three months or less in the service for 
pension as Judge shall be deemed to have been condoned.  
 
14.   Determination of pension. ---  Subject to the provisions of this 
Order, the pension payable to a Judge who, on his retirement, is 
entitled to a pension under this Order shall be calculated --- 
 
a)  in the case of a Judge who is not a member of a 
service in Pakistan or who immediately before his 
appointment as a Judge did not hold any other 
pensionable civil post in connection with the affairs of the 
Centre or of a Province, in accordance with the provisions 
of Part I of the First Schedule;  
 
b)   in the case of a Judge who is a member of a civil 
service in Pakistan or who immediately before his 
appointment as a Judge held any other pensionable civil 
post in connection with the affairs of the Centre or of a 
Province, in accordance with the provisions of Part II of the 
First Schedule, unless he elects to receive pension under 
Part I of the said Schedule.  
 
15.   Pension of Judges not covered by paragraph 13. --- A Judge 
who immediately before his appointment as such was a member 
of a civil service in Pakistan or was holding a post in connection 
with the affairs of the Centre or of a Province and who does not 
fulfill the conditions laid down in paragraph 13 shall, on retirement, 
be entitled to such pension as would have been admissible to him 
in his service or post, had he not been appointed a Judge, his 
service as a Judge being treated as service for the purpose of 
calculating that pension”. 
 
2. 
 
An identical provision can be found in the Constitution of 
1962 and that of 1956 in the same words which provided that every judge 
 
209 
of a High Court shall be entitled to such privileges and allowances and to 
such rights in respect of leave of absence and pension as may be 
determined by the President and unless so determined to the privileges, 
allowances and rights to which immediately before the commencing day 
the judges of the High Court were entitled. What was the instrument 
regulating the entitlement of the judges to the privileges and allowances 
and to such rights in respect of leave of absence and pension 
immediately before the commencing day of the aforesaid Constitution. 
The answer can be found in the relevant provisions of The High Court 
Judges Order 1937 which read as under:- 
“Pension.  17.--- (1)  Subject to the provisions of this Order, a 
pension shall be payable to a Judge on his retirement if, but only if, 
either –  
a) 
he has completed not less than 12 years’ service for 
pension; or  
b) 
he has completed not less than 7 years’ service for 
pension and has attained the age of sixty; or  
c) 
he has completed not less than 7 years’ service for 
pension and his retirement is medically certified to be necessitated 
by ill-health”.  
 
2)   The [President] may for special reasons direct that any period 
not exceeding three months shall be added to a Judge’s service 
for pension:  
 
 
Provided that a period so added shall be disregarded in 
calculating any additional pension under Part I or Part II of the 
Third Schedule to this Order”.  
  
3. 
  
All provisions of the orders reproduced above show that a 
Judge shall have a right to pension only if he has put in the prescribed 
qualifying service. Mere appointment as a Judge will not entitle him to 
pension. Many instruments regulating the entitlement of judges of the High 
Court to privileges and allowances and rights in respect of leave of 
absence and pension like Order II of 1993 and Order IX of 1970 have been 
enforced but none of them entitles them to rights to pension if they have 
put in less than five years of service. It, thus, clinches the matter once and 
 
210 
for all and leaves no doubt that rights of the judges to pension who have 
put in less than five years of service also stand determined. What was 
required to be enforced under the enabling provision of the Fifth 
Schedule stood enforced in the form of Order II of 1993 and Order III of 
1997 which have been extensively reproduced in the main judgment. 
When this being the case, we don’t understand where do the rights to 
pension of the judges who have put in less than five years of service come 
from. It was argued by one of the counsel representing the retired judges 
that if the rights of the judges to pension who have put in less than five 
years of service, have been recognized by the Constitution, it could not 
be denied due to inaction of the President as the very conferment of the 
power enabling him to determine such rights would invariably call for its 
exercise. But this argument, to say the least, appears to be misconceived 
as there has not been any inaction on the part of the President at any 
stage or at any point of time, inasmuch as, he enforced Order II of 1993 
and Order III of 1997 determining such rights in clear and unambiguous 
terms. Once these rights have been determined pursuant to paragraph 2 
of Fifth Schedule of the Constitution, we don’t think any judge who has 
put in less than five years service can be left with a hope or an occasion 
to wait for yet another order determining the rights in accordance with his 
wishful thinking.  
4. 
 
The provision recorded in the judgment rendered in the case 
of “Accountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi and 
others” (supra) entitling a Judges to pension who have put in less than five 
years of service is paragraph 4 of Order VIII of 2007 but when this and the 
paragraph succeeding it are read together and each word used therein 
is given due meaning, it does not tend to support the deductions drawn 
therefrom.  None of the words used in the aforesaid paragraphs could 
lead to the meaning wrung and wrested therefrom in the judgment under 
review. It appears that the aforesaid paragraphs have not been read 
carefully nor were they interpreted in their correct perspective.  
 
211 
5.  
When asked whether the Judges who have put in less than five 
years of service could retain the benefits they have received in case the 
judgment rendered in the case of “Accountant General, Sindh and others. 
Vs. Ahmed Ali U. Qureshi and others” (supra) is set at naught, learned 
counsel representing the Judges submitted that it being a transaction 
past and closed cannot be reopened because a subsequent decision 
being prospective in operation cannot be applied retrospectively. But 
when 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 the 
judgment furnishing basis for grant of such benefits is set at naught and 
thus rendered non existent, no satisfactory reply was given by any of the 
counsel representing them. Granted that a subsequent precedent 
overruling a previous one being prospective in operation cannot be 
applied retrospectively but this principle will not apply when the judgment 
furnishing a basis for a right or entitlement stands annulled on having been 
reviewed. Therefore, a judgment reversing or declaring a judgment per 
incuriam in review cannot be treated at par with a judgment overruling or 
declaring a precedent in another case as per incuriam. As for example, a 
pre-emptor, succeeding to get a decree from a Court, in a pre-emption 
case without having a superior right of pre-emption and without making 
demands which are sine qua non for the enforcement of such right, 
cannot claim any right or benefit much less vested on the basis of such 
decree when it is annulled by the Court granting it in the exercise of its 
review jurisdiction. Retention of a benefit or right thus acquired cannot be 
justified under any cannons of law, justice and propriety. It cannot be 
justified 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 find 
any statutory basis to shield the benefits the latter received, they sought to 
shield them behind the principle of locus poenitentiae by arguing that an 
order extending a right cannot be rescinded, revoked or recalled if it is 
 
212 
acted upon and in consequence a right has accrued. This principle 
cannot help them firstly because it is not applicable to judicial 
proceedings and secondly because it cannot be applied in a vacuum 
without considering the import of provisions contained in section 21 of the 
General Clauses Act. According to the aforesaid provision, the authority 
passing such order, in the first instance must have a power to pass, and 
then recall, revoke or rescind it. Where the authority passing the order has 
no power to pass it, its recall, revocation or rescindment can’t be 
precluded on the ground that it has been acted upon and in 
consequence a valuable right has accrued. An order passed without a 
power, would be just non-est. The judgment rendered in the case of 
“Accountant General, Sindh and others. Vs. Ahmed Ali U. Qureshi and 
others” (supra), when read with open eyes does not appear to have 
been based on and backed by any order, instrument or any statutory 
provision worth the name. It, therefore, has no basis altogether. If at all it 
had any by any stretch of imagination, it vanished and withered away on 
having been reviewed.  Needless to say, that fall of basis would call for 
the fall of the superstructure raised thereon. Effect of the judgment in 
Constitution Petition No. 127 of 2012 declaring the judgment rendered in 
the case of “Accountant General, Sindh and others. Vs. Ahmed Ali U. 
Qureshi and others” (supra) as per incuriam would be prospective as well 
as retrospective when the existence of the latter on having been 
reviewed has been reduced into non-existence unlike the judgments 
overruled or dissented from inasmuch as they for having been rendered in 
different cases do not reopen the matters past and closed.  
7. 
 I have also been deliberating since the commencement of 
hearing of their case till the writing of this note to find some justification for 
the retention of the benefits received by the learned Judges but could 
not find any. In case I create or contrive one in this behalf, I cannot find 
any reason to deny the same relief to the others whose case is either in 
the pipeline or who have yet to retire. I also could not find any intelligible 
 
213 
differentia for a classification amongst the Judges who have received the 
benefits and those who have yet to receive notwithstanding they are 
similarly placed. Even otherwise, a benefit extended in derogation of the 
law cannot be justified to be retained simply because it has been 
received as such.    
 
 
 
 
 
 
 
Judge 
219 
 
 
Iqbal Hameedur Rahman, J: - I have the honour and privilege of 
going through a very lucid judgment expounded by my lord Justice Anwar 
Zaheer Jamali, J, as well as additional notes of my lords Justice Mian Saqib 
Nisar and Justice Muhammad Ather Saeed, JJ, wherein very persuasive and 
elaborate interpretation has been given with clarity in pursuance to our 
short order dated 11.04.2013, whereby the judgment rendered by this Court 
in the case of Accountant-General, Sindh and others vs. Ahmed Ali U. 
Qureshi and others (PLD 2008 SC 522) has been declared to be per-
incuriam. 
2. 
Both my lords, Justice Anwar Zaheer Jamali and Justice Mian Saqib 
Nisar, JJ, have in exhaustive manner dealt with the contentions raised by 
respondents-Judges and the law alongwith the interpretation of 
constitutional provisions extensively with clarity and reasoning supported 
by celebrated judgments and I fully concur with the reasoning and 
conclusions being propounded by my lords by holding the judgment in the 
case of Accountant-General, Sindh and others vs. Ahmed Ali U. Qureshi 
and others per-incuriam. There is no cavil to the same and I fully agree 
with the same, but with due reverence and humility to my lord Justice 
Anwar Zaheer Jamali, J, I find myself not in consonance with the view that 
the judgment should take retrospective effect rather, on this issue, I concur 
with my lords Justice Mian Saqib Nisar and Justice Muhammad Ather 
Saeed that the judgment should take prospective effect, and in this regard I 
am fully in accord with the reasons given by my lord Justice Mian Saqib 
Nisar, J, which reads as under: - 
“13. 
…….. Be that as it may, my reasons for giving this judgment 
prospective effect are:- majority of the Judges have not even approached this 
Court to seek the relief for the grant of pension, rather it is only in terms of 
paragraph No.34 of “the judgment” which provides “In consequence to the 
above discussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003, 
220 
 
34/2003, 04/2004 and 26/2007, filed by the retired Judges of the High Courts 
are allowed and the petitioners/applicants in these petitions and miscellaneous 
applications, along with all other retired Judges of the High Courts, who are not 
party in the present proceedings, are held entitled to get pension and pensionary 
benefits with other privileges admissible to them in terms, of Article 205 of the 
Constitution read with P.O.No.8 of 2007 and Article 203-C of the Constitution 
read with paras 2 and 3 of Fifth Schedule and P.O. No.2 of 1993 and P.O.3 of 
1997 from the date of their respective retirements, irrespective of their length of 
service as such Judges (emphasis supplied)” that they were contacted by the 
Registrar of the respective High Courts (as this is the stand taken by them and I have no 
reasons to disbelieve) and they were offered the pension. Some of the beneficiaries 
of “the judgment” are the widows of the retired Judges. It is nobody’s case that 
they have practiced and played any fraud or committed some foul in gaining and 
procuring the pension, so as to disentitle them to retain such gain, on the known 
principle, that no one should be allowed to hold the premium of his wrong/fraud 
and/or retain ill gotten gains. Rather to the contrary they have received the 
monies under the judicial dispensation by the apex Court, which was considered 
as valid enunciation of law, till the present decision and the pension was paid 
and received by them 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 High Court(s) and also 
in other judicial circles, rather it was a publicly known fact, yet the verdict was 
left outstanding for a considerably long period, thereby allowing the Judges to 
derive benefit of “the judgment”; I am not persuaded that the Registrar of this 
Court or for that matter all the concerned, at all the levels, including the learned 
Members of this Bench, who graced the respective High Courts of the country as 
the Chief Justices were unaware of “the judgment”, but still no timely action 
was initiated to set the wrong law, right and the time was allowed to pass. If a 
wrong and an error has been committed in the declaration of law (PLD 2008 SC 
522), the responsibility rests on this Court and it is fundamental rule of law and 
justice, that the act of the Court shall prejudice none; in my view this principle 
tilts in favour of the Judges, rather the State. Because on account of the lapse of 
considerable time, most of the Judges might have spent and consumed the 
amount received by them, as they are expected to have decent living after their 
retirement; the amount so received might have expended on the education and 
marriages of their children; the possibility that they might have acquired an 
221 
 
abode to spend rest of their life to avoid dependency on their scion cannot be 
ruled out. This amount might have been utilized on their daily expense and 
sustenance 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 to 
sell their assets (shelter) and belongings. Those who have no assets or saving 
might be compelled and constrained to entreat others or borrow which would 
definitely not behove with their status and position as the retired Judges; baring 
few, most of them are of old age and I am not sure they have the ability and 
capacity, at such an advance age to generate the requisite amount for the refund. 
Enforcing the refund of the amount upon them may cause innumerable 
predicament for them and may lead to a very pathetic and a ludicrous situation 
for them. And all those who have once graced the superior judiciary, might in 
this scenario be rendered destitute and precarious and deprived of even a modest 
life and living in future. But for the commission of no wrong, fraud, foul and 
fault on their part. Rather as stated earlier an error and mistake perpetrated by 
this Court. Therefore, I am of the considered view that the present judgment be 
given prospective effect.” 
3. 
I, therefore, consider the judgment Accountant-General, Sindh 
(supra) to be per-incuriam, which should be given prospective effect and 
the pensionary benefits being paid to the Judges should be discontinued 
with effect from passing of the judgment and order by this Court, but no 
direction for the of recovery of pensionary benefits and emoluments already 
availed by them can be given, as the same are undoubtedly not obtained by 
them on account of any commission of wrong, fraud or fault on their part 
rather the same have been availed on account of a mistaken judgment by 
this Court. As such, the instant judgment and order cannot be given 
retrospective effect. 
 
Judge.