Justice (R) Zafar Iqbal Chaudhry Vs Federation of Pakistan etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

W.P. No. 55961/2026 Justice (R) Zafar Iqbal Ch. Versus Federation of Pakistan, etc. S.No. of order/ Date of order/ Order with signature of Judge and that of Proceeding Proceeding parties or counsel, where necessary. 07.10.2026 Barrister Mahmood A. Shiekh, Advocate for petitioner. Mir Haroon-ur-Rasheed, Assistant Attorney General for Pakistan.

After making preliminary arguments on the issue of maintainability of instant constitutional petition, learned counsel had sought adjournment on last hearing for filing application to amend the petition. Hence, application bearing C.M No.02/2026, which is heard and decided along main petition.

2.Bare minimum facts leading to this petition are that petitioner filed application, claiming entitlement to pensionary benefits. Application was considered by Committee comprising of Hon’ble Judges of this Court and disapproved, which recommendations were considered by Honorable Chief Justice and request was declined. Refusal was conveyed through letter by the Registrar of this Court dated 11.05.2026, which is impugned.

3.In wake of the facts pleaded, insurmountable hurdle in entertaining this petition and let alone passing any order either in terms of sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution of Islamic Republic of Pakistan 1973 (the ‘Constitution’) is specific

exclusion of certain categories of person, which inter alia includes “a High Court”. In short, assumption of jurisdiction is against the mandate of clause (5) of Article 199 of the Constitution.

4.Learned Law Officer objected to the maintainability and cited the case of “Gul Tiaz Khan Marwat Vs. The Registrar, Peshawar High Court, Peshawar and others” (PLD 2021 Supreme Court 391) – [referred as ‘original judgment’ for the purposes of this decision].

Learned counsel for the petitioner averred that case-law cited has been reviewed, hence, same does not hold any binding precedent. Reference is made to decision reported as “Gul Tiaz Khan Marwat Vs. The Registrar, Peshawar High Court, Peshawar and others” (2026 SCMR 287) - (‘review judgment’). Learned counsel read few paragraphs from the Additional note, appended with the review judgment.

5.I have examined the review judgment, wherein the ratio / reasoning of the original judgment was neither overturned nor disturbed but effect of the order was set- aside in wake of an error apparent, upon highlighting Rule 22 of the Peshawar High Court Ministerial Establishment (Appointment and Conditions of Service) Rules 2020, which provided remedy of appeal accordingly against order assailed before learned Judges of Peshawar High Court. Threadbare reading of

paragraph 10 of the review judgment demonstrates a measured approach and considerable circumspection to ensure non-expansive reach / impact of the pronouncement. For convenience of understanding, paragraph 10 of review judgment is reproduced hereunder;

“10. It is by now settled that a reviewable ground would essentially be one where the decision was per incuriam or where error is so evident that it is floating on the surface of the record, having substantial impact on the final outcome of the case as happened in the instant case, thereby constituting a valid ground for review. We therefore allow this review petition, set aside the judgment dated 16.3.2020, passed by this Court in Civil Appeal No. 353 of 2010 to the extent of petitioner and order dated 06.03.2009 passed by the Peshawar High Court, Peshawar in Constitution Petition No. 1065 of 2009, whereby the writ petition filed by the petitioner was dismissed, and the matter is remanded to the Hon'ble Chief Justice of the Peshawar High Court, Peshawar, to place the petitioner's appeal before the judges to be nominated by him for decision in accordance with law.”

[Emphasis supplied]

6.Judgment of 16.03.2020 was set-aside to the extent of review-petitioner. Now, I discuss the scope of constitutional hindrance in entertaining this petition.

Jurisprudence with respect to clause (5) of Article 199 of the Constitution is well settled and position was not altered upon pronouncement of review judgment. It would be apt to reproduce the following passage from the book, Judicial Review of Public Actions (Second Edition) by late Mr. Justice Fazal Karim, a jurist of eminence, appearing in volume 3, at page 1536, for appreciating the scope of aforesaid clause. Relevant quote from the book reads as,

Clause (5) of Article 199 in not an ouster clause in any conventional or non-conventional sense. It is what it is described to be; a definition clause. It addresses the “who” question; the basic question: who is amenable

to judicial review. Judicial review is the review of the actions and actions require actors. So, clause (5) focuses on the subjects of judicial review. [See the very useful article “The Subjects of the Constiution” in (2010) 62 Standford Law Review 1209].

7.A “High Court”, which comprises of Judges, Committee’s comprising of its Judges and including the Chief Justice, represents ‘an integrated whole’ and are not amenable to judicial review jurisdiction. No ground for invoking plea of ‘persona designata’ is otherwise available against the author(s) of the recommendations and endorsement by the Honourable Chief Justice – an expression ‘a High Court’ has been used in clause (5) of Article 199 of the Constitution and reference was not to any particular Judge. For the completeness of adjudication, it is observed that exceptions discussed with reference to the availability and exercise of judicial review jurisdcition in the case of DISTRICT BAR ASSOCIATION, RAWALPINDI and others v.

FEDERATION OF PAKISTAN and others (PLD 2015 Supreme Court 401) are not available, in the context of facts of the case at hand and otherwise in wake of distinguishable features thereof.

8.Now I take up the application seeking amendment.

Contents of amended petition and amendments sought are examined, and I am convinced that, what is prohibited directly cannot be accomplished indirectly; in guise of or through proposed amendments.

9.In view of the aforesaid, I stand by and affirm the conventional wisdom, reiterated through numerous judicial pronouncements, that the institutional collegiality and judicial comity shall be ensured and maintained.

10.Application and constitutional petition are hereby, dismissed.

(Asim Hafeez) Judge *M. Nadeem*

Approved for reporting.

Judge