ISLAMABAD: Five judges of the Islamabad High Court (IHC) have approached the Supreme Court (SC) of Pakistan against an order, restraining Justice Tariq Mahmood Jehangiri from performing judicial work.
The five judges of the IHC included Justice Mohsin Akhtar Kiyani, Justice Tariq Mahmood Jahangiri, Justice Babar Sattar, Justice Saman Rifat and Justice Ejaz Ishaq Khan, The News reported.
They arrived at the Supreme Court together through the main gate, usually used by ordinary citizens, and each of them completed biometric verification before submitting separate petitions.
Talking to reporters outside the court, Justice Mohsin Akhtar Kiyani said that rules prevented the judges from filing a joint petition.
Meanwhile, Justice Mohsin Akhtar filed the petition under Article 184(3) of the Constitution, making the IHC, through its registrar and its chief justice, as well as the Federation of Pakistan, through the secretary of the Ministry of Law and Justice, as respondents.
Justice Kiyani questioned whether the passing of an interim order against one of the petitioner judges, restraining him from performing the functions of a judge, is squarely violative of the Supreme Court judgements in Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry vs. President of Pakistan (PLD 2010 SC 61) and in Malik Asad Ali and others vs. Federation of Pakistan.
Justice Kiyani prayed the apex court to declare that:
i. the administrative powers cannot be deployed to undermine or trump the judicial powers of the judges of the high court;
ii. the chief justice of a high court is not authorised to constitute benches or transfer cases once a bench of the high court is seized of the matter;
iii. the chief justice of a high court cannot exclude available judges from the roster at will and use the power to issue a roster to oust judges from performing judicial functions;
iv. the constitution of benches, transfer of cases, and issuance of the roster can only be done in accordance with the rules adopted by the entirety of the high court under Article 202, read with Article 192(1) of the Constitution;
v. the doctrine of “Master of the Roster” has been definitively set aside in the Supreme Court decisions, including in Raja Amer Khan v. Federation of Pakistan (PLJ 2024 Supreme Court 114), and the decision-making with respect to the constitution of benches, transfer of cases, or issuance of the roster cannot solely rest in the hands of the chief justice only;
vi. the formation of the administration committees through notifications dated 03.02.2025 and 15.07.2025, and all the actions taken by them, suffer from mala fide in law and are illegal;
vii. the notifications dated 03.02.2025 and 15.07.2025, and all the actions taken by the administration committees, be set aside for being illegal and coram non judice;
viii. the adoption and approval of the Islamabad High Court Practice and Procedure Rules, 2025, by the illegally constituted administration committee, and its notification without the prior approval of the high court, is in breach of Article 192(1) read with Article 202 of the Constitution, and its subsequent endorsement in September, are illegal and of no legal effect;
ix. the IHC be directed to provide effective supervision and oversight over the functioning of the district judiciary, as mandated by the Constitution under Article 203, and section 6 of the Islamabad High Court Act, 2010, and to provide for the Islamabad District Judiciary as a permanent institution, members of which enjoy judicial independence and are able to discharge their judicial duties without considerations of fear or favour;
x. the high court cannot issue a writ under Article 199 of the Constitution to itself and a Division Bench of the high court is neither vested with jurisdiction to sit in appeal over interlocutory orders of a Single Bench nor can assume control over the proceedings of a Single Bench as if it is an inferior court or tribunal;
xi. a judge of a high court can only be restrained from performing judicial duties under Article 209 of the Constitution and a writ of quo warranto seeking the removal of a judge from office is not maintainable in terms of Article 209(7) read with Article 199(1) of the Constitution.
Justice Mohsin Akhtar Kiyani submitted that most recently, a Division Bench restrained one of the petitioner judges, Justice Tariq Mahmood Jahangiri, from “holding court”.
“The assumption of jurisdiction in a matter barred by Article 209(7) read with Article 199(1) of the Constitution and exercise of judicial powers in breach of principles of fair trial and due process guaranteed by Article 10A of the Constitution is a potent example of self-cannibalisation by an institution,” Justice Kiyani submitted.
The IHC judge contended that the suspension order in the matter of Mian Dawood vs. Justice Tariq Mahmood Jahangiri is the latest manifestation of the retribution that some of the petitioner judges have been threatened with, for the exercise of judicial authority in a manner in select cases that powerful members of the Executive found disagreeable.
“The petitioner judges seek this court’s indulgence to allow them to document details of efforts made to influence the outcome of judicial decisions during the course of proceedings and furnish personal affidavits in support thereof,” Justice Kiyani submitted.
He further submitted that abuse of judicial powers, undermining the judicial powers of the petitioner judges, is in violation of the law.
The IHC judge contended that administrative powers cannot be deployed in a manner that they trump the judicial powers of the judges in the court.
Justice Kiyani recalled that in Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 Supreme Court 161), it was held that an administrative order passed by the chief justice (acting under restraint), in derogation of a judicial order, would be without lawful authority and of no legal effect.
Similarly, Justice Kiyani submitted that the law has been violated by arbitrarily constituting benches, rendering the petitioner judges dysfunctional.
The IHC judge submitted that the use of administrative powers to transform a collegiate body into a regiment is violative of the Constitution and the law, adding that the Constitution does not envision the bureaucratisation of the judiciary.
The current practice is that the issuance of the roster determines who at the IHC can perform his functions as a judge, Justice Kiyani submitted.
He further contended that even for reserved matters, if the issued roster does not list the judge, the judgements already reserved by that judge cannot be announced in open court.
“Similarly, available judges are arbitrarily taken out of the Division Bench and even denied a single bench, at will,” the judge maintained.
Justice Kiyani further contended that the passing of an interim order against one of the petitioner judges, restraining him from performing the functions of a judge, is squarely violative of the Supreme Court case in Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 Supreme Court 161), where the Supreme Court, at paragraph 84, held that “the high court while hearing a case against the judge of a superior court under Article 199 of the Constitution seeking information in the nature of quo warranto which we have held is maintainable, cannot pass any interim order restraining the judge from performing his functions as a judge of the court, in view of clause (5) of Article 199 of the Constitution.”
Meanwhile, Justice Jehangiri also challenged in the Supreme Court the decision of restraining him from performing judicial duties.
He filed a petition in the apex court under Article 184(3) of the Constitution, making the IHC, through its Registrar, chief justice, as well as the Federation of Pakistan, through the secretary of the Ministry of Law and Justice, as respondents.
He prayed the apex court to declare that a judge of a high court can only be restrained from performing judicial duties under Article 209 of the Constitution, and a writ of quo warranto seeking the removal of a judge from office is not maintainable in terms of Article 209(7) read with Article 199(1) of the Constitution.
Meanwhile, the cause lists of the IHC were cancelled due to the unavailability of five judges. The cause list of Justice Saman Rifat Imtiaz’s court was cancelled, while the division bench comprising Justice Babar Sattar and Justice Ejaz Ishaq Khan also did not hear tax-related cases.
Justice Arbab Muhammad Tahir and Justice Khadim Hussain Soomro are already on leave until September 19. Due to the unavailability of five judges of the High Court, hearings of several cases were postponed.