FCC rejects IHC judges’ plea in transfer case

Six-member bench dismisses plea on account of non-compliance after neither judge appeared before court

ISLAMABAD, NOV 24 /DNA/: The Federal Constitutional Court (FCC) on Monday rejected intra-court appeals (ICAs) filed by five Islamabad High Court (IHC) judges and others challenging the Supreme Court’s verdict on judges’ transfer and upheld the June verdict.

The court also rejected the judges’ request seeking the transfer of their ICA back to the SC on account of non-compliance, saying that none of the petitioners appeared before the court.

The verdict came on miscellaneous petition filed by IHC’s Justice Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Riffat Imtiaz in the FCC, arguing that the case must be heard by the Supreme Court.

The case was heard by the FCC’s six-member larger bench, headed by Chief Justice Aminuddin Khan and comprising Justice Syed Hassan Azhar Rizvi, Justice K K Agha, Justice Aamer Farooq, Justice Ali Baqir Najafi, Justice Rozi Khan Barrech and Justice Arsahd Hussain Shah.

During the hearing, the bench rejected the judges’ request on account of non-compliance after none of the judges appeared before the court.

The case relates to the transfer of Justice Sarfraz Dogar from the Lahore High Court, Justice Khadim Hussain Soomro from the Sindh High Court, and Justice Muhammad Asif from the Balochistan High Court to the IHC.

Apart from the five IHC’s judges, the Karachi Bar Association (KBA), the IHC Bar Association, and others had challenged the transfer in the SC, which back in June, dismissed the pleas while terming the move as constitutional.

The five IHC judges had then filed an ICA against the SC decision which was recently transferred and fixed before the newly formed FCC under the 27th Constitutional Amendment — a move also challenged by the judges.

In their plea challenging the hearing of the ICA on SC verdict, they contended that the titled appeal does not fall within Articles 175E or 175F, and consequently could not have been transferred to the FCC. They prayed to the FCC that the ICA may be returned to the SC for determination.

“Without prejudice to aforesaid objections on the constitutionality of the 27th Amendment, the titled appeal could not have been transferred to the Federal Constitutional Court under Articles 175E or 175F of the Constitution,” the five judges submitted. They contended that the titled appeal was filed under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 (Act) before the Supreme Court.

Therefore, they contended that the 27th Amendment neither amended the Act nor dealt with statutory appeals filed under the Act, adding that Article 175F(2) provides that those appeals that “fall under this Article” shall stand transferred to the FCC.

“The titled appeal was not filed under Articles 175E or 175F of the Constitution and consequently, the transfer of the said appeal, filed pursuant to Section 5 of the Act, to the FCC is without any legal force, they submitted. They further submitted that the appeal was filed before the Supreme Court but it is now, however, listed for hearing before the FCC on November 24.

“It appears the subject appeal has been transferred to the latter court on account of the purported amendment to the Constitution through the Constitution (27th Amendment) Act 2025 whereby Article 175F(2) has been introduced, reading as follows:

“All petitions for leave to appeal, appeals or review applications, to which clause (1) apply or any other proceedings falling within the jurisdiction of the Federal Constitutional Court, filed or pending before the Supreme Court prior to commencement of the Constitution (Twenty-seventh Amendment) Act, 2025, stand transferred to Federal Constitutional Court and shall only be heard and decided by that Court.”

The five IHC judges, however, prayed that the said appeal be returned to the original forum — the Supreme Court — as the said transfer and the 27th Amendment itself are without lawful authority.

Meanwhile, in the ICA filed back in June, the IHC judges had  urged that the Constitutional Bench’s order should be “recalled and set-aside […] in the interest of justice”.

“During the pendency of the instant appeal, this Hon’ble Court may graciously grant interim relief as prayed for in the accompanying interim relief application. Any other relief that this Hon’ble Court may deem fit and proper may also be granted,” the plea mentioned.