ISLAMABAD: Islamabad High Court (IHC) Chief Justice Sardar Mohammad Sarfraz Dogar has directed that a constitutional petition challenging a decision of the Judicial Commission of Pakistan (JCP), taken on April 28, 2026, be fixed before another bench, observing that he himself was a member of the commission whose decision had been challenged.
The direction came during a hearing of the petition filed by Advocate Yawar Gardezi, along with objections raised by the court office.
Appearing before the court, petitioner’s counsel Syed Nayyab Hassan Gardezi argued that the petition had been filed under Article 199 of the Constitution, impleading the federation of Pakistan, the JCP, the president and the prime minister as respondents.
The petitioner sought the annulment of the JCP’s April 28 decision, which held that a vacancy arising from the transfer of a high court judge would not be treated as a vacant seat for an initial appointment.
Says he was member of commission whose decision on vacancy arising from transfer of a high court judge has been challenged
Mr Gardezi contended that the commission’s decision was contrary to Articles 4, 25, 175A and 193 of the Constitution and should be declared unconstitutional and without legal effect.
According to the petition, three vacancies created in the IHC following the transfer of judges on April 29, 2026, should be treated as vacant positions under Article 175A(8). It seeks directions for inviting nominations from every member of the Judicial Commission for fresh appointments against these vacancies.
The petition maintained that Article 175A(8) requires the commission to nominate one person for each vacancy of a high court judge and does not recognise any separate category of vacancies that can only be filled through transfers.
It also questions the legality of the commission’s decision on procedural grounds, arguing that the matter was reportedly introduced during the meeting rather than being included in the circulated agenda, contrary to Rule 11(2) of the Judicial Commission of Pakistan (Appointment of Judges) Rules 2024, which requires members to be notified at least 14 days in advance.
The petitioner also challenged the voting procedure, contending that Rule 15 of the JCP Rules requires a two-third majority of the commission’s total membership to remove procedural difficulties, whereas the impugned decision records approval by a simple majority.
The petition further questions the composition of the commission when the decision was taken, arguing that appointments to the IHC must follow the distinct constitutional composition prescribed under Article 175A(6), rather than the composition applicable to proceedings concerning the transfer of judges under Article 200.
It also points out that the JCP filled vacancies in the Lahore, Sindh and Balochistan High Courts through fresh appointments in July 2026, while the three vacancies in the IHC have been reserved for transfers.
The IHC, according to the petition, is functioning with a chief justice and nine judges against its sanctioned strength of a chief justice and 12 judges, leaving three positions vacant for more than five months.
The petition also sought interim relief to restrain the respondents from recommending, approving or notifying further transfers of judges to the IHC against the three vacant positions while the petition remains pending.
During the hearing, Chief Justice Dogar observed that since he was also a member of the JCP whose decision had been challenged, it would be appropriate for another bench to hear the matter.
“If I pass any order in this matter, it may give the impression that some favour is being extended,” he remarked.
Advocate Gardezi requested the court to remove the office objections and forward the case to another bench.
The chief justice, however, observed that the other bench would also examine the objections and directed that the matter be fixed before a different bench within a day or two. The court subsequently adjourned the hearing.
Published in Dawn, October 31st, 2026
