The history of the High Court at Lahore is spread over the last hundred and fifty years.
By 1830, Maharaja Ranjit Singh, the famous Sikh ruler of Punjab, consolidated the innumerable small principalities ruled by independent chieftains in the Province. Before the consolidation, there were no Judicial Courts, no written laws and no established authority to maintain or enforce them. The chieftains decided cases according to their own whims and discretions Certain rules of customs for settlement of civil and criminal disputes through arbitrators governed the field , but they were by no means uniform or reputable.
Even during Maharaja Ranjit Singh's period, no great judicial reforms were introduced. The Saddar Adulate Court (Chief Court ) at Lahore was the sole Court in his realm. There were officers dealing with fiscal and military matters, but none specifically to dispense civil or criminal justice.
The annexation of the Punjab by the British was immediately followed by the creation of a Board of Administration in 1849 consisting of three Members. The Board had powers of a Sudder (Chief) Court of Judicature and a Sudder Board of Revenue.
In 1853 the Board of Administration was replaced with a Chief Commissioner, and two Principal Commissioners separately appointed for Judicial and Administrative work. The Judicial Commissioner was the Chief Judge of appeal and his Court was the final appellate Court.
By the Punjab Courts Act, XIX of 1865, inter alia, seven classes of Courts were brought into being in the Civil Jurisdiction. Starting from the Court of Tehsildar at the bottom to the Court of the Judicial Commissioner at the top.
The Chief Court Act, IV of 1866 constituted the Chief Court of the Punjab as the ultimate Court of Appeal from the Civil and Criminal Courts in the province. The Chief Court was also vested with Extraordinary Original Civil Jurisdiction and Supervisory Jurisdiction over Subordinate Courts.
In 1867, the Governor General of India in Council was empowered by the Acting Judges Act,. XVI of 1867, to appoint a person to act temporarily as Judge. The member of permanent and ad hoc judges was increased from time to time and by 186 four additional and two for the Chief Court.
In 1877, the Punjab Courts Act, (XIX of 1865) and the Chief Court Act (IV of 1866), were repealed by the Punjab Courts Act, (XVII of 1877), which consolidated and re-stated the law inter alia relating to the Chief Court.
Over the years, it was noticed that the appeals to the Chief Court had increased to astronomical proportions and the work was greatly in excess of what the permanent and additional judges of the Court could dispose of. Though additional Judges had been appointed to clear off arrears, it was thought advisable to give some form of greater finality to the decisions of the lower appellate courts to stem the tide of appeals being preferred to the Chief Court. It was also thought advisable to reconstitute the subordinate courts and revise their scope, powers and jurisdiction.
The Punjab Courts Act, XVIII of 1884, which repealed the Punjab Courts Act of 1877, not only touched the question of subordinate courts, their reconstruction, jurisdiction and powers, but also modified and restated the law regarding the constitution, powers and jurisdiction of the Chief Court as well.
By Act XIX of 1895 the senior most Judge began to be designated as the Chief Judge. In November, 1896, the pay of the Chief Judge was raised over and above that of the other Judges by Rs. 250 per mensem. Previously, the Chief Judge and Judges drew the same salary, that is Rs. 3,500 per mensem. The increase was made consequent on a recommendation made by the Government of India to the Secretary of State for India requesting for permission to raise the salary of the Chief Judge of the Punjab Chief Court to Rs.3,750 per mensem, to be at par with the salary of Puisne Judges in the Chartered High Courts.
In 1899, the Secretary of State for India in Council, by its Resolution dated 25 April 1899, laid down as a principle that all Chief Justices and Judges of the High Courts in India thereafter to be appointed would be required to vacate their offices on attaining the age of sixty years.
In the same year, the pay of the Chief Judge of the Chief Court was raised to Rs. 4,000 per mensem consequent on the pay of other Puisne Judges of the Chief Court being raised to Rs, 3,750 per mensem.
From 1911 two additional Judges, from 1917, the third additional Judge was sanctioned and from 1918, the fourth additional Judge was added and this temporary strength of four Judges continued till the Letters Patent was granted to the Court in 1919.
In 1911 the Imperial Parliament passed the Indian High Courts Act 1911 giving the Royal Sovereign the power, inter alia, to establish new High Courts in British India from time to time as the occasion arose and to appoint temporary Additional Judge for a term not exceeding two years, Since, however, the Chief Court did not come within the category of the High Court, all additional appointments of temporary Judges to the Chief Court were made by the Governor-General under various Punjab Courts Acts enacted in 1884, 1914 and 1918 (as amended from time to time) read with the Acting Judges Act, XVI of 1867.
Four years later, the Govt. of India Act, was repealed by the Government of India Act, 1915. The new Act provided that all the existing High Courts established by Letters Patent would be treated as High Courts for the purposes of the said act that each High Court, would consist of a Chief Justice and as many other Judges as His Majesty thought fit to appoint, that the Governor-General in council would appoint persons to act as Additional Judges for such period not exceeding two years as where necessary, and that the maximum number of Judges of a High Court including the chief Justice and the Additional Judges would be twenty. The Act also provided that the Judges would hold office during His Majesty's pleasure and that Acting Judges would be appointed by the Local Governments.
The new Act also granted the Royal Sovereign authority to establish High Courts by Letters Patent in any territory in British India and to confer on any High Court so established any such jurisdiction power, and authority as were vested in or might be conferred on any High Court existing at the commencement of that Act. The Letters Patent establishing the Lahore High Court was granted pursuant to the provisions contained in Section 113 of the Government of India Act, 1915.
In 1919, under the Letters Patent creating the High Court of Judicature at Lahore, the Judges thereof were appointed directly by His Majesty the King Emperor. The Court of the Province was for the first time constituted as a Court of Record with powers to punish persons guilty of its contempt, a power which the previous Chief Court did not possess. The permanent strength of the High Court was limited to seven Judges -- one Chief Justice and six Puisne Judges.
The jurisdiction of the High Court was laid down by its Letters Patent; it had jurisdiction over the Provinces of the Punjab and Delhi. It was constituted the highest Appellate Authority in Civil and Criminal cases It possessed extraordinary Civil and Criminal Jurisdiction. It also exercised in Matrimonial, Probate and Administration matters Original Jurisdiction By Clauses 10 of the Letters Patent, Civil appeals were provided against the judgment of a single Judge to a Bench of two Judges, subject to certain stated conditions.
From 1921 onwards the Judges were required to give an undertaking upon appointment to their office, not to resume practice at the Bar on their retirement.
The Government of India Act, 1935 made certain radical changes in the constitution and powers of the various High Courts in British India. The new Act provided that the Judges would hold office during good behaviour, whereas previously they held office during His Majesty's pleasure. Instead of the ceiling of twenty Judges fixed by the earlier Act, the present Act left it to His Majesty to fix the number of Judges separately for each High Court depending upon their requirements. All acting appointments of Judges were left in the hands of the Governor-General and the powers of the Local Governments was withdrawn. Under the old system, the Chief Justice had always been a Barrister Judge.The new Act removed this limitation and opened the Chief Justiceship to Civilian Judges as well. The new Act also fixed the 60 years age limit for High Court Judges. By the Government of India (High Court Judges) Order, 1937, the maximum number of Judges fixed for the Lahore High Court was 15. The said Order also prescribed the scale of pay and rights as to leave, pension gratuity, etc, of the various judges serving the different High Courts in India including the Lahore High Court.
In the middle of 1947 by the enactment of a master instrument captioned, the Indian Independence Act, 1947, the Imperial Parliament created the two independent Dominions of Pakistan and India.
The High Courts (Punjab) Order, 1947, a subsidiary instrument of the Act created a new High Court of Judicature for the territory of East Punjab (in India ) as from the 15th day of August, 1947.
Side by side, the High Court (Lahore) Order, 1947, preserved the continuance of the High Court at Lahore with all rights, powers and privileges as hitherto enjoyed and possessed by it before the appointed day. The Governor-General of the Dominion of Pakistan became the substitute of the Crown in matters of appointment etc., of Judges of the Lahore High Court.
After the Partition, the Governor General of Pakistan fixed the strength of the Lahore High Court at 6 permanent Judges and one Additional Judge with effect from 28 September 1948.
On 6 July 1954, Government of India (Amendment) Act, 1954 was passed. By this new Act, all High Courts in Pakistan were invested for the first time with powers to issue to any person or authority, including the Government itself in appropriate cases, writ in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari.
On 30 September 1955 the Constituent Assembly of Pakistan passed the Establishment of West Pakistan Act, 1955. By Section 7 of the Establishment of West Pakistan Act, 1955, the Governor-General of Pakistan was invested with the power to establish, by Order, a High Court for the Province of West Pakistan to replace the High Court of Lahore.
The High Court of West Pakistan(Establishment) Order XIX of 1955, (which came into force on 14th October, 1955) established the legal foundation for the High Court of West Pakistan and provided for various matters in relation to its jurisdiction and powers. The Order inter alia provided that the new High Court of West Pakistan would have such Original, Appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the High Court of Judicature at Lahore had immediately before the commencement of that Order.
By virtue of Article 6 of the High Court of West Pakistan(Establishment) Order, 1955, read with Section 7 of the Establishment of West Pakistan Act, 1955, Judges of the Chief Court of Sind and the Judicial Commissioners'Court at Peshawar became Judges of the High Court of West Pakistan, entitled to terms and conditions of service, not less favourable than those to which they were entitled as Judge of the High Courts from which they were transferred. Persons who were immediately before the date of the establishment of the High Court of West Pakistan serving as temporary or additional Judges became, on the interacting day, temporary or additional Judges, as the case may be of the High Court of West Pakistan.
The 1956 Constitution provided for a High Court for each of the two Provinces and declared that the existing High Court for the Provinces of East Bengal and West Pakistan functioning before the Constitution Day would be deemed to be High Courts, under the Constitution, for the Provinces of East Pakistan and West Pakistan respectively. Under the Constitution, both the Provincial High Courts retained the jurisdiction and powers as were exercisable by them immediately before the Constitution Day. Likewise, persons holding office as Chief Justice and Judges of the two Provincial High Courts, continued to retain their offices on the same terms and conditions as to remuneration and other privileges as were applicable to them immediately before the Constitution Day.
As previously provided in the Government of India Act, 1935, the new Constitution declared the two Provincial High Courts to be Courts of Record and provided for the appointment of permanent and acting Judges by the President of Pakistan (instead of the Governor-General), for their holding of the office during good behaviour and for their retirement at the age of 60. Unfortunately, the new Constitution did not provide for the appointment of temporary additional Judges to any of the two High Courts.
The qualification for appointment of persons as Judges of the said High Courts were altered. Pakistan Citizenship was made a pre-requisite. The bifurcation previously created between Barristers and Pleaders was removed and both were grouped into one compartment for eligibility, namely, advocates or pleaders having at least ten years' standing in both or either of High Courts. The qualifying period of five years service previously laid down for persons holding judicial officers in British India not inferior to that of a subordinated Judge, or judge of a Small Cause Court, was raised to ten, but the enumeration describing the two particular types of judicial offices to be held was removed. The appointment of all Judges by the President was made conditional on the President first seeking advice from the Chief Justice of Pakistan, the Governor General of Province to which the appointment related and where the appointment was out that of the Province to which the appointment related and where the appointment was not that of the Chief Justice, the Chief Justice of the High Court of that Province. The Constitution also gave the President the power to transfer a Judges of a High Court from one High Court to the other High Court after securing the Judges's consent and after consultation with the Chief Justice of Pakistan and the Chief Justice of the Court of which the proposed transferee was a Judge.
The two High Courts were given power, throughout the territories in which they exercised jurisdiction, to issue to any person or authority(including the government directions, orders or writs (including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari) for the enforcement of all or any of the Fundamental Rights contained in Part II of the Constitution and for any other purpose generally.
The second constitution of Pakistan was promulgated and came into force on 8 June 1962 on which date the National Assembly met for the first time at Rawalpindi. Several Orders were passed to remove difficulties coming in the way of the effective operation of the Constitution. Under the said Constitution, there was to be a High Court for each of the two Provinces, consisting of such number of Judges as at least ten years, standing and who had served as, or exercised the powers of a District Judge for at least three years, the provision was replaced by one which enabled only members of such Civil Services as were specially prescribed by law for the purpose of the said Article and who had served as or exercised the function of District judges for the period of not less than three years. to be eligible for appointment . after the Constitution came into operation, the Civil Service of Pakistan was not included as a Service prescribed by law for the purposes of Article 92. The new Constitution provided for the appointment of additional Judges. unlike the previous of which did not contain any such provision. Whereas under the previous Constitution, the right to invoke the Supreme Court's jurisdiction was itself a fundamental right, under the new Constitution the Supreme Court's jurisdiction to enforce Fundamental Rights was transferred to the High Courts, with this difference that the right was not one which could be invoked as a fundamental right but was one which could only be enforced subject to the High Courts discretion. The previous Constitution Act gave wider powers to the High Courts for the purpose of issuing Writ, directions and orders but the new Constitution while preserving the Writ Jurisdiction narrowed down the limits within which it could be exercised and added the pre-requisite that it should not be issued where other adequate remedies were provided by law. It further contained a provision prohibiting the issue of writ in relation to persons in the Defence Services of Pakistan in respect of their terms and conditions of service or matters arising therefrom or in respect of action taken against them as members of such Services and in relation to other persons in the Service of Pakistan, in respect of their terms and conditions of service, except those as were specified in the Constitution itself. In many other respects the provisions in the Chapter dealing with the High Courts in the new Constitution Act were a parallel if not similar to the provisions existing in the Constitution Act of 1956.
Through P.O. of 1969 the High Court Judges (Retiring Age) Order, P.O. 8 of 1969, the anomaly created by Article 178 of the Constitution of 1962 was removed by providing that notwithstanding anything contained in the said Constitution, a Judge of a High Court could hold office until he attained the age of 62, unless he resigned or was removed from office earlier in accordance with the procedure prescribed for such removal.
On 14 August 1973, the Constitution of the Islamic Republic of Pakistan, 1973, came into force. No special change was made in the term and conditions of the Senior Judges. However, a Special Chapter headed "General Provisions relating to the judicature" was added, which inter alia provided constitutional protection to the remuneration and other terms and conditions of service of Judges of the Supreme Court the High Court, barred Judges during their term of office, from holding offices of profit the Service of Pakistan or occupying other positions carrying the right to remuneration or the rendering of services and after their retirement or resignation from holding offices of profit (other than judicial or quasi judicial offices or the office of Chief Election Commissioner or of Chairman or member of the Council of Islamic Ideology) till the expiry of two years after they ceased to hold their offices; and prevented permanent Judges after their retirement from pleading or acting in Courts in which they were holding office or before Courts or authority within its jurisdiction. The said Chapter also provided for the Constitution of a Supreme Judicial Council of Pakistan, consisting of the Chief Justice of Pakistan, the two next most senior Judges of the Supreme Court and the two most senior Chief Justices of the high Courts, for the purposes of issuing a Code of Conduct to be observed by the Judges of the Supreme Court and the high Court and for holding inquires on references by the President into the charges of physical or mental incapacity of or misconduct against Judges of the Supreme Court or the high Courts and, where such incapacity or misconduct was provided, to recommend their removal.
In April,1974, certain substantial benefits in the terms and conditions of service were granted to the Judges of the High Court. By the Judges (Leave, Pension, Privileges )(Amendment) Order, P.O. 1 of 1974, the following further benefits and privileges were provided, namely, (a) the use of a residence without payment of throughout the term of office of a Judge and for a period of 30 days thereafter. Where any finical charge to the Judge in respect of its maintenance and where a Judge has to reside in his own house, to be entitled to be paid a monthly allowance of Rs.750/- were privilege of having his residence maintained at government expense, free of local and taxes, with the full provision of electricity, gas and water by Government and use of an official car maintained at government expense, the cost of petrol being by the Judge concerned; both the benefits being free of tad.
In April, 1974, certain further amendments were made to the High Court (Traveling Allowances) Order 4 of 1965, inter alia raising the special rate of allowance admissible to Judges when travelling on duty and liberalizing the travel allowance admissible to them for journeys from their home town to the place posting and on retirement from their last place of posting to their home town.
In May, 1974, certain n important amendments were made to the Constitution, 1973, some of which related to the High Court which permitted the temporary transfer of judges from one High Court to another.
In December, 1974, the Judges (Leave Pension and Privileges) Order, P.O.9 of 1970, was further amended to provide to all Judges who were not provided residences by the Government, house allowance, irrespective of the fact whether they resided in their own houses or not. The allowances permissible to a Judge under paragraphs 22-A and 22-B of President's Order 2 of 1970 were made free of tax.
In the same month the Administration Committee, presided by Justice Javed Iqbal approved the presentation of arguments in Urdu, if a lawyer so wished to do so, in view of Urdu being declared the national language under the Constitution
On 13 September 1976, the Constitution (Fifth Amendment) Act, LXII of 1976, was enacted which brought about important changes in the Constitution relating to the Supreme Court of Pakistan and the High Courts in the provinces. Articles 179 and 195 were extended to provide for the retirement of the Chief Justice of the Supreme Court and the Chief Justice of a High Court, whether appointed before or after the commencement of the aid Constitutional Amendment, on their completing a term of office of five and four years respectively as such Chief Justice, unless they sooner attained the age of 65 and 62 years respectively. The amendment allowed the Chief Justice the option either to retire from their offices and receive the pension to which they would be entitled if the had retired from office on attaining the ages of 65 and 62 years respectively, or to assume the office of most senior of the other puisne judges of the Supreme Court or the High Court and to continue to receive the same salary which they were receiving while holding the office of Chief Justice. The amendments also provided that a person who once held office as Chief Justice of the Supreme Court or the High Court and where such person assumed the office of the most senior of the other puisne Judges, the Judge who was until then the most senior of the other puisne, would rank next after the person who ceased to be the Chief Justice in order of seniority. Article 206 was also extended to provide that a Judge of a High court who did not accept appointment as a Judge of the Supreme Court, would be deemed to have retired from his office and, on such retire ment, he would be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan. These amendments were brought about art the instance of a special request made by the Chief Justice of Pakistan to the Prime Minister in that behalf., as some of the Supreme Court had, in the past, refused to do so on one pretext or the other and had prevented the Supreme Court from receiving the best talent available, which it was its right to receive in the public interest. The matter came to a head when Chief Justice Ibqal refused to join the Supreme Court for certain Persona reasons. The amendment to Article 195 directly affected the retention of office of Chief Justice by Mr. Justice Sardar Muhammad Iqbal, who opted for retirement.
Apart from these sweeping changes made in the Articles of the Constitution relating to the retirement and resignation of Judges of the Supreme Court and the High Courts, clause (3-A) of Article 199 of the Constitution of the High Court relating to the enforcement of Fundamental rights and the issue of orders in the nature of writs, was also substituted, atrociously circumscribing its jurisdiction. The new substituted clause prevented a High Court from making (a) an order prohibiting the making, or suspending the operation, of an order for the detention of any person under any law providing for preventive detention, (b) an order for the release on bail of any person detained under any law providing for preventive detention, (c) an order for the release on bail, or an order suspending the operation of an order for the custody, of any person against whom a report or complaint had been made before any Court of Tribunal, or against whom a case had been registered at any Police Station, in respect of an offence, or who had been convicted by any Court or Tribunal, (d) an order prohibiting the registration of a cases at a Police Station, or the making of a report or complaint before any Court or Tribunal, in respect of an offence, or (e) any other interim order in respect of any person referred to in categories (a) to (d) above. The amendment also provided that any such order made at any time after the commencement of the previous, that is to say, the fourth Constitutional orders, that were pending before any High Court would abate. The amendment was also made applicable to the disposal of applications made in petitions for leave to appeal, or in appeals, from orders such as were referred to in clause (3-A|) that were pending before the Supreme Court immediately before the fifth Constitutional amendment. A storm of protest was raised by the Bar all over the country to the amendments made to Article 199, as the same seriously curtailed the writ jurisdiction of the High Court. The opposition parties did not lag behind in proclaiming that the amendments were made to crush their members, who were vocal in projecting the faults of the political party in power.
On 26 March 1978, the Judges (Leave Pension and Privileges) (Amendment) Order, P.O.5 of 1976, was issued, further granting benefits and privileges to the Judges, as follows: (a) Superior Judicial Officer's allowance of Rs.1250/- p.m. to the Chief Justice and Rs.1000/- p.m. to every other Judge, free of tax, (b) increase in the monthly allowance for maintenance of house from Rs.750/- p.m. to Rs.1500 p.m. to every Judge, free of tax, and (c) reimbursement of cost of petrol not exceeding 300 liters to every Judge, free of tax. By a later President's Order, 11 of 1978, Judges who had opted to be governed by the Provisions applicable to them before the commencement of the High Court Judges (Leave, Pension and privileges) Order, P.O.9 of 1970, and who had retired after 14th August, 1973, could opt within six months from the commencement of the Amending President's Order or from the date on which they retired, to be governed by the provisions of the President's Order 9 of 1970.
On 21 August 1978, the Laws (Continuance in Force) (Sixth Amendment) Order, C.M.L.A. 1 of 1977, was passed further extending the time under clause (3) of Article 195 of the Constitution for bringing about the separation of the judiciary from the executive.
In September, the Administration Committee approved amendments in the High Court Rules & Orders to enable smooth transition to be made from English to Urdu in the mode of address and filing of documentation etc., before the Court
In December, by the Shariat Benches of Superior Courts Order, P.O.22 of 197, a Shariat bench was created in the High Court, as in the other High Courts, in pursuance of the policy to bring about Islamization of the judiciary. The Shariat bench was to consist of three Muslim Judges of the High Court, to be appointed by the President on the recommendation of the Chief Justice of the Court. A Shariat Appellate bench was also created in the Supreme Court to consist of three Muslim Judges of the said Court to be appointed by the President on the recommendation of the Chief Justice of Pakistan. The Shariat bench was given powers to examine and decide all questions relating to whether or not any law or provision was repugnant to the injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet.
In January, 1979, the Full Court in its meeting held on Wednesday the 17th resolved that as from 12th Rabi-ul-Awal, 1399 Hijri i.e. Saturday, 10th of February, 1979, when the Shariat Benches would start functioning in the High Court, the dress of the Judges and lawyers would be black sherwani with the white collar inside, white shalwar/pajama and black shoes and socks, and the robes of Judges would be a black silk "Jubba" of the Saudi Arabian style with a gold braid with inwoven crest of the Court around the neck of the "Jubba" culminating at the center of the chest with a gold ball and tassel hanging at each end and similar gold braid around the opening of the sleeves and gold beading stitched into the seam of the "Jubba" of the same style, but in cloth sleeves. The robes prescribed for lawyers was also "Jubba" of the same style, but in cloth other than silk and with black braid and beading instead of gold. The Full Court also discussed the mode of address and decided that the Court in future would be addressed as "Sir" or "Janab-e-Wala". The decisions were taken pursuant to persistent attempts made by the Punjab and the Pakistan Bar Councils from time to time to compel the High Court to impose the "Qaumi Libas" in view of the changed circumstances and introduction of Islamic Order in the country. However, when the decision was taken and communicated to the said bar Councils, the Pakistan Bar Council, by its letter dated 31.1.1979, requested the High Court to reconsider its decision and to permit the lawyers to wear either black achkan/sherwani or black coat with black tie.
During May, 1979, as a first step towards the separation of the Judiciary from the Executive, in order to fulfil the Constitutional requirement of Article 175 (3) of the Constitution of Pakistan, the Government of the Punjab placed the services of 41 Extra Assistant Commissioners under the control of the High Court provisionally, for their posting as Judicial magistrates exercising powers under section 30 Cr.P.C. for the disposal of criminal cases. These officers otherwise remained under the administrative control of the Government and their services were repatriable to the Executive. later, as time progressed, the number of such magistrates kept dwindling, without any prospects of their being merged in the Judiciary, or the Judiciary being separated from the Executive.
In November, the Superior Courts (Courts Dress and Mode of Address) Order, P.O. 15 of 1980, was enacted to regulate Court dress and mode of address in the Superior Courts effective Ist November, 190 which was the first day of the 15th Century Hijra. Under the said Order a Judge of a Superior Court was to wear, whilst he was attending sittings of the Court, a black sherwani without bands and, during winter, a black gown, and whilst he was attending State or ceremonial functions, a black sherwani without bands. In case a Judge used a headgear, the Order provided that it was to be a Jinnah cap of back colour. The use of the expressions "My Lord" and "Your Lordship" and the like, in relation to a Judge was ordered to be discontinued and it was provided that a Judge should be addressed as "Sir" or "Janab-e-Wala" or `Janab-e-Ali" and he was to be referred in judgments, correspondence or other instruments as "Mr. Justice" so and so or the like.
On Ist January, 1981, by the High Courts (Establishment) Order (Punjab Amendment) Ordinance, 1 of 1981, permanent benches of the Lahore High Court were established with immediate effect at Bahawalpur, Multan and Rawalpindi. The said Ordinance amended the High Court (Establishment) Order, P.O. 8 of 1970, in its application to the Province of the Punjab, by substituting clause (3) of Article 3 of the President's Order with new clauses (3) of Article 3, (3A), 3B) and (3C) and adding a new Article 7-A thereto. Under the new clause (3) of Article 3, the Lahore High Court and the Judges and Divisional Courts thereof were enjoined to sit at their principal seat and the seats of its Benches, but could hold, at any place in the Province, Circuit Courts consisting of such of the Judges as the Chief Justice may, from time to time, nominate. Under clause (3A) of the said Article, the Chief Justice had the power to nominate, from time to time, Judges to the three Benches. Under clause (3B) of the same Article, all proceedings relating to the Civil Divisions of Bahawalpur, Multan and Rawalpindi pending in the Lahore High Court immediately before the commencement of the Ordinance, stood in the Lahore High Court immediately before the commencement of the ordinance, stood transferred to the benches at Bahawalpur, Multan and Rawalpindi respectively. Under clause (3C) of the said Article, the Chief Justice had the power to make provision for assigning the areas in relation to which the benches were to exercise jurisdiction, the transfer of proceedings pending in the Lahore High Court, the Benches or the Circuit Court to a Bench or to a Circuit Court or to the Lahore High Court, as the case may be, the determination of cases or classes of cases which could be disposed of by the Judges nominated to the Benches or the Circuit Courts and for all matters incidental, supplemental and consequential thereto. The Ordinance also gave the Chief Justice the power by order to delegate from time to time, all or any of his powers and functions to any Judge and in like manner to withdraw all or any of such powers.
On 24th March, the Provisional Constitution Order, C.M.L.A. 1 of 1981, (hereinafter to be referred to as "the P.C.O.") was promulgated. Ten out of its eighteen Articles mainly dealt with the Supreme Court and the High Court. Articles 5 and 6 provided for the appointment of adhoc Judges of the Supreme Court and the power of the Supreme Court to transfer cases from one High Court to another. Under clause (3) of Article 7, the Lahore High Court was provided a Bench each at Bahawalpur, Multan and Rawalpindi. Under clause (4) of the said Article, the bench referred to in clause (3), or established under clause (4) was to consist of such of the Judges of the High Court as would be nominated by the Chief Justice from time to time for a period of not less than one year. Under clause (1) of the said Article any High Court in existence immediately before the commencing day was to continue to have its principal seat at the place where it had such seat before that day and, under clause (2) thereof, each High Court and the Judges and the Divisional Courts thereof were to sit at the principal seat and the seats of its Benches and could hold, at any place within its territorial jurisdiction, Circuit Courts consisting of such of the Judges as may be nominated by the Chief Justice. Under clause (6) of the said Article, the Governor in consultation with the Chief Justice of the High Court concerned, could make Rules assigning the area in relation to which each Bench could exercise jurisdiction vested in the High Court and respecting all incidental, supplemental or consequential matters. Article 8 provided for the appointment of an Acting Chief Justice, if the office of the Chief Justice of a High Court was vacant or the Chief Justice was absent or unable to perform functions of this office due to any other cause. Article 9 laid down the powers of the High Court to issue writs, parallel and on lines almost similar to Article 199 of the 1973 Constitution as it last stood with amendments prior to the promulgation of the P.C.O. Article 10 dealt with the transfer of High Court Judges, on lines almost parallel to Article 200 of the 1973 Constitution as last amended, except that in the proviso to clause (3) the expression "High Court" in the Article under reference could also include a bench of the High Court. Article 15 validated the proclamation of the 5th day of July, 1977, all President's Orders, Order of the Chief Martial Law Administrator etc. on lines parallel to Article 212-A of the 1973 Constitution. Article-17 related to the oath of President as well as the Chief martial law Administrator was granted, and was deemed always to have had, the power to amend the Constitution. Article 17 related to the oath of office of the Judges of the Supreme Court, High Courts and the Federal Shariat Court. Under clause (1) of the said Article, a person holding office immediately before the commencement of the P.C.O. as Chief Justice of Pakistan or other Judge of the Supreme Court, or Chief Justice or other Judges of the High Court, or Chairman or member of the Federal Shariat Court, could not continue to hold that office if he was not given oath, or did not make oath, in the form set out in the Schedule, before the expiry of such time from such commencement as the President determined or within such further time as was allowed by the President. Under clause (2) of the said Article, a person who made oath as required by clause (1), was bound by the provisions of the P.C.O. and, notwithstanding the judgment of any Court, could not call in question or permit to be called in question the validity of its provisions. The oath prescribed for the Chief Justice and Judges of the High Court, enjoined upon the Judge concerned inter alia to discharge his duties, and perform his functions honestly to the best of the ability and faithfully in accordance with the Provisional Constitution Order, 1981, and the law and to abide by the Provisional Order, 1981.
The brief particulars of the above Provisional Constitution Order were carried by the national radio and television in the evening and the night bulletins. Next morning on the 25th March, when the learned Judges assembled in the Common Room at about 9.00 a.m. on the Acting Chief Justice's invitation, they did not have the full facts or the whole text of the Provisional Constitution Order before them, other than having read some portions of that ordinance in the press write up that had appeared in the morning newspapers of that date. The learned Judges were informed by the Acting Chief Justice that the Governor would be taking oath the same day. During conversation, a number of Judges expressed their desire to resign, as they were not prepared to make oath under the new provisional Constitution Order or otherwise were not willing to serve any further. The Judges in the category were four, namely Mr.. Justice Zaki-ud-Din Pal, Mr. Justice Aftab Farruh, Mr. Justice Habib Ullah and Mr. Justice Aamer Raza A. Khan. At about 1.00 p.m. when seventeen of the Judges who were present in Lahore and had decided to make oath had assembled in the Darbar hall of the Governor's House, Mr. Justice M.M.A. Samdani, Mr. Justice Khalil-ur-Rahman and Mr. Justice Khurshid Ahmad were discreetly informed by a member of the Governor's staff that they would not be given oath. This created embarrassment for them, as they had come all the way from the High Court. out of twenty-one Judges present in Lahore that day, fourteen made their oaths before Lt. Gen. Ghulam Jilani, the Governor of the Punjab, whereas four refused to make and three were not given oaths. Mr. Justice Shafiur Rahman, Mr. Justice Sheikh Aftab Hussain, Mr. Justice Muhammad Afzal Lone and Mr. Justice Mahboob Ahmad, who were on duty in Rawalpindi, made their oaths before Syed Sharif-ud-Din Pirzada, Federal law Minister, in Rawalpindi, Mr. Justice A.S. Salam, who was on duty in Multan, made oath before Maj.. Gen. Raja Saroop Khan, Deputy Martial Law Administrator, in Multan. Mr. Justice, Muhammad Hassan Sindhar, who was also working in Multan, was not given oath. he was discreetly informed beforehand about this. Mr. Justice Munawwar Elahi Rana, who was working in Bahawalpur, made his oath before Maj.. General Muhammad Iqbal, Deputy martial law Administrator, in Bahawalpur. Mr. Justice Saad Saood Jan and Mr. Justice Gulbaz Khan, who were on tour and en route to Lahore, made their oaths before the Governor in Lahore on the next day. After some days, rumours circulating in the Bar indicated that actually there were ten Judges who were not to be given oath, namely, the four who had refused to make oath and the four who had not been given oath and two others, who were reprieved at the intercession of the Acting Chief Justice, which accounted for the delay in the oath-taking ceremony. An attempt next day to reprieve Mr. Justice K.M.A. Samdani succeeded, but the learned Judge refused to make oath, notwithstanding attempts made in that direction. The four Judges who had refused to make oath and the four Judges who were not given oath, were notified as ceasing to hold office with effect from 25th March, vide law Ministry's notification dated 7th April, 1981
On 16th July, the Lahore High Court (Establishment of benches) Rules, 1981, were framed inter alia providing for the filing and disposal of judicial matter arising within the jurisdiction of the benches and the establishment of Registries at the benches to deal with all administrative work. It also gave power to the Chief Justice to transfer pending proceedings between the principal seat and any of its benches, to determine cases or class of cases which could be disposed of at the principal seat or a Bench as may be deemed expedient, to require Judges to sit for short period at any bench. Circuit Court or Principal Seat, to redefine the areas of the Benches and to pass such orders as may be considered necessary for the efficient working of the benches. The Rules also provided for the payment of remuneration to Judges nominated under Article 7(5) of the Provisional Constitution Order, 1981, to work at the Benches for periods of not less than.
On 23rd September, 1981, the Acting Chief Justice, by a notification, directed that all classes of cases arising within the areas assigned to the three permanent Benches would only be filed before and disposed of by those respective benches, excepting certain classes of cases which would be disposed of at the principal seat at Lahore. The latter category inter alia included constitutional matters requiring the interpretation of the Constitution, all Tax matters, all cases under the Companies Act, all land Reforms cases, all cases in which the original orders were passed by a Secretary of the Federal or Provincial Government or by a member of the Board of Revenue, all Murder References (at Lahore and in need of immediate relief. The object of the notification was to remove all doubts as regards the cases that could be dealt with at the principal seat and partly to accommodate requests made by certain Government departments to permit cases relating to their departments to be dealt with only at the principal seat, where they could be more effectively dealt with by the departments concerned.
On 17 November 1981, by the Constitution (Fourth Amendment) Order, P.O. 13 of 1981, the Fifth Schedule of the Constitution of Pakistan was amended so as to raise the salary of the Chief Justice of High Court from Rs. 5000 per mensem and the salary of a Judge of a High Court from Rs. 4000 per mensem to Rs. 5000 per mensem.
On 28th February, 1982, by the Constitution (Amendment) Order, P.O. 2 of 1982, and Explanation was added under clause (1) of Article 181 of the Constitution of Pakistan to enable a Judge of a high Court, who had retired, to be appointed as an Acting Judge of the Supreme Court.
On 10th April, 1982, the Acting Chief Justice by a Notification issued in partial modification of an earlier one, directed that all classes of civil, criminal and constitutional matters arising within the areas assigned to a Bench could be filed before and disposed of by that bench, excepting certain classes of cases which could be disposed of at the Principal seat at Lahore. The latter category inter alia included murder references at the choice of the appellants. Inter Court appeals arising out of decision of a single Judge sitting at a bench where a Division Bench was not available at that Bench and there was urgent application seeking transfer of proceedings from a bench to another bench or to the principal seat, pre=arrest bail matters where the petitioners were at Lahore and were in need of immediate interim relief and applications seeking transfer of proceedings from a subordinate Court in the area assigned to a bench to another subordinate Court in the area assigned to another Bench or to the principal seat.
On 6th February, 1983, by the Transfer of High Court Judges (Allowance & privileges) Order, P.O.2 of 1983, a monthly allowance of Rs. 1500 was fixed , in addition to salary, where a Judge of High Court was transferred from one High Court to another or from the principal seat of a High Court to a bench of that Court or was appointed to an office other than that of Judge at a place other than the principal seat of the Court, during the period for which he served as a Judge of the High Court, or at the bench to which he was transferred or held such other office in addition to the extra allowance, if the family of the Judge did not join him at the place to which he was transferred or at which he was posted, he was entitled to single rent free accommodation maintained by the Government and an official car maintained at government expense, including the supply f petrol not exceeding 150 liters per month for use in such case, provided that if there were two Judges of the same Court serving as such at the same place, they had to share one official car provided with the aforesaid quantity of petrol.
On 4th April, 1983, by the Constitution (Amendment) Order, 4 of 1983, the third para of the Fifth Schedule of the Constitution of Pakistan, 1973, was amended to increase the minimum pension payable to a Judge of a High Court who had put in not less than five years service from Rs. 1000 per mensem to Rs. 2100 per mensem and the maximum pension depending upon the length of his service, from Rs.1750 per mensem to Rs. 3600 per mensem.
On the same date by the Judges (Leave, Pension & Privileges) (Amendment) Order, P.O. 5of 1983, the basic pension payable under Part 1 of the First Schedule to the High Court Judges (leave, Pension and privileges) Order, 1970, was increased from Rs. 1000 per mensem to Rs. 1100 per mensem, the extra pension for each subsequent completed year of service was raised from Rs.100 to Rs.200 per mensem and the maximum pension was raised from Rs.1750 per mensem to Rs.3600 per mensem. Likewise, the pension payable to a Judge under Part II of the First Schedule of the dame raised from Rs. 100 to Rs. 200 per mensem and the maximum pension was raised from Rs.1750 per mensem to Rs.3600 per mensem.
On 17 January 1985 by the Constitution (Amendment) Order, 6 of 1985, the Fifth Schedule of the Constitution of Pakistan was amended, increasing the salary of the Chief Justice of a High Court from Rs.5800 per mensem to Rs.7200 per mensem and that of every Judge of a High Court from Rs.5000 per mensem to Rs.6500 per mensem and the minimum pension of a High court Judge from Rs.2100 per mensem to Rs.2400 per mensem and the maximum pension from Rs.3600 per mensem to Rs.4200 per mensem in addition to the above, provision was also made for the widow of a Judge of a high Court to be entitled to 50% of the net pension payable to a Judge, if he died after retirement, and 50% of the pension admissible to a Judge at the minimum rate, if the Judge died after having rendered not less than five years service as such Judge, and whilst still serving as such. The said pension was payable to the widow died, the pension was payable to the sons of the Judge who were less than 21 years of age, until they attained that age, and to the unmarried daughters who were less than 21 years of age until they attained the age or got married, whichever first occurred.
On 10 February 1985,the Administration Committee of the High Court considered the recommendations of a Sub-Committee appointed to look into the question of inter se seniority of the Judges of the High Court and decided (i) that Judge who was younger in age, when the appointment was made in the same batch, whether from the Bar or from the Service; (ii) that if two or more Judges were appointed from the Service in the same batch, they would retain their Service seniority as existing on the day of their appointment and, (iii) that if two or more Judges were appointed from the Bar and from the Service in the same batch, then the junior Judge from the Service would rank after the senior Judge from the service, even though he may be older in age to any Judge appointed from the Bar.
In 1985, one of the Judges who had come in the batch in November, 1981, and had claimed seniority over three others, attempted to settle his account vis-a-vis another brother Judge by seating himself as the senior Judge. This resulted in any unhappy situation, On coming to know of it, the Chief Justice, Mr. Justice Javed Ibqal, hurriedly convened a meeting of the Administration Committee on 10th February, 1985, where the above decision regarding seniority was taken. This decision required confirmation of the Full Court. Apprehending unpleasantness at the meeting that would be held for the purpose, it was decided that views of all the Judges be obtained by circulation. On receipt of the views, the Chief Justice referred the matter to the Law Ministry. The Ministry took it to the President, who was the appointing authority for the High Court Judges. It was directed by the President that an equitable principle consistently adopted in regard to inter se seniority of Judges, appointed by a single order, was that they should take also simultaneously made with that of candidates from the Bar, the Service Judges should retain their existing seniority in the Department, regardless of their age, which of course would be determining factor in respect of their seniority vis-a-vis candidates from the Bar. While conveying this directive of the President to the High Court, vide letter No. 12(5)/86-AII, dated 20th April, 1987, the Ministry asked the High Court to revise its seniority list accordingly and send the revised list to the Ministry for onward transmission to the President's Secretariat (Public), but this was never done and the further batch of Judges that came in July, 1983, march, 1984, and October 1988, had some complaints and though all the Judges aggrieved by their incorrect rankings attempted to secure justice, all the Chief Justices, one after the other, felt paralysed and avoided to take a decision. The oldest High Court in the country could not find a Chief Justice brave enough to implement the President's letter, or have the matter solved one way or the other.
The above President's ruling is clear that Judges who come in one batch, should first be ranked in order of seniority by age. The next question as to how a Service Judge who is junior in age to another Service Judge, but otherwise senior to him in Service, is to be placed, has not been clearly stated is the senior Service Judge to be taken out of his normal place and placed one position ahead of the junior Service Judge, or the junior Service Judge to be taken out of his normal place and placed one position below the senior Service Judge. Till this is answered, the difficulty will remain.
Pursuant to the desire of General Muhammad Zia-ul-Haq, President of Pakistan, to restore democracy, elections were held in February, 1985, and the Revival of the Constitution of 1973 Order, 14 of 1985, was passed on 2nd march, 1985, whereby far reaching powers were granted to the President by extensive and sweeping changes made in the Constitution. On 23rd May, 1985, the joint sitting of the Parliament took place and General Muhammad Zia-ul-Haq too oath of office as the President.
On 2nd March, 1985, by the Judges (Leave, Pension and Privileges) (Amendment) Order, P.O. 13 of 1985, the monthly allowance for the maintenance of a Judge's house, where a Judge chose to reside in a house not provided by the Government, was raised from Rs.1500 to Rs.2000 per mensem. The minimum basic pension was raised from Rs.2100 per mensem to Rs.2400 per mensem, the rate of increase of pension for each completed year of service was increased from Rs.200 per mensem to Rs.230 per mensem and the maximum pension was raised from Rs.2600 per mensem to Rs.4200 per mensem. Likewise, in respect of a Judge, who was a member of a Civil Service in Pakistan or who held any other pensionable civil post, the extra pension payable to him for each completed year of service was increased from Rs.200 per mensem to Rs.230 per mensem and the maximum pension was increased from Rs.3600 per mensem to Rs.4200 per mensem. Still further, extraordinary annual pension and gratuity in respect of a Judge, who suffered injuries, and extraordinary annual pension and gratuity to the widow of a Judge who died as a result of violence, whilst on duty, were also substantially increased.
On 19 March 1985, by the Constitution (Third Amendment) Order, P.O. 24 of 1985, clause (1) in Explanation to Article 200 of the Constitution was amended to include a Judge for the time being acting as Chief Justice of a High Court, other than a Judge of the Supreme Court acting as such in pursuance of a request made under paragraph (b) of Article 196 to enable the President to transfer an Acting Chief Justice from one High Court to another High Court. The scope of the said Article was further enlarged so that a Judge of a High Court who did not accept transfer to another high Court under clause (1) of the said Article, could be deemed to have retired from his office and, on such retirement, to be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.
Notwithstanding numerous external and internal pressures and difficulties, the Court has during this period, maintained a dignity, respect prestige and independence which has invalid those of other Superior Courts elsewhere in the world its judgments have found their rightful place in the legal chronicles of the country. Even during the worst period of political chaos and economic stresses, the Judges of the Court and the members of its principal bar have showed indomitable spirit, integrity, honesty and independence of judgement.