2023 SCP 18

Federation of Pakistan thr. M/o Defense vs Mrs. Ajmal Samia (decd) thr. her

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Citation2023 SCP 18

CourtSupreme Court of Pakistan

Case No.Civil Appeal No.1621 of 2017, C.R.P.50/2017 in C.M.A.5782/2016 in C.A.1621/2017,

Date2023-01-11

Judge(s)Qazi Faez Isa, Muhammad Ali Mazhar

ResultOrder Accordingly

AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This matter concerns the absence of an appointed Attorney-General for Pakistan during proceedings before the Supreme Court. The core legal question addressed is whether the office of the Attorney-General, being a constitutional post, can remain vacant and whether other law officers, such as the Deputy Attorney-General or Additional Attorney-General, can substitute for the Attorney-General in performing statutory duties. The Court held that the office of the Attorney-General is a constitutional necessity that cannot be left vacant, noting that the Constitution of the Islamic Republic of Pakistan does not provide for an acting Attorney-General. Furthermore, the Court clarified that statutory requirements, such as those under the Code of Civil Procedure 1908, specifically mandate notice to the Attorney-General, and neither a Deputy Attorney-General nor an Additional Attorney-General serves as a legal substitute for the Attorney-General. The principle laid down is that the office of the Attorney-General is a critical constitutional functionary whose presence is required for the proper administration of justice and compliance with statutory notice provisions, and the Federal Government must ensure the post is filled.

Questions settled in this judgment

Can the office of the Attorney-General for Pakistan remain vacant?
Does the Constitution of the Islamic Republic of Pakistan provide for an acting Attorney-General?
Can a Deputy Attorney-General or Additional Attorney-General substitute for the Attorney-General regarding statutory notice requirements?

Laws & provisions referred

Article 100, Constitution of the Islamic Republic of Pakistan
Order XXVIIA, Code of Civil Procedure 1908

Attorney-General for PakistanConstitutional postStatutory noticeCode of Civil ProcedureFederal Government representation

ORDER

The appellant in this case is the Federation of Pakistan and is represented by Raja Shafqat Abbasi, learned Deputy Attorney-General ('DAG'). Learned DAG commenced his arguments but basic facts were not enumerated precisely. Therefore, we wanted to send for the Attorney-General for Pakistan so that he could come and render proper assistance. However, on enquiring who the Attorney-General is, we were not given a satisfactory answer to what is a simple query. We then called upon Chaudhry Aamir Rehman, learned Additional Attorney-General, present in Court, to answer our query and he said he was unable to. It transpires that Mr. Ashtar Ausaf Ali resigned from the post of Attorney-General a couple of months back and in his stead no one has been appointed till date despite lapse of more than a reasonable period.

2. Article 100 of the Constitution of Islamic Republic of Pakistan ('the Constitution') stipulates that: '100. (1) The President shall appoint a person, being a person qualified to be appointed a Judge of the Supreme Court, to be the Attorney-General for Pakistan.

(2) The Attorney-General shall hold office during the pleasure of the President and shall not engage in private practice so long as he holds the office of the Attorney-General.

(3) It shall be the duty of the Attorney-General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Federal Government, and in the performance of his duties he shall have the right of audience in all courts and tribunals in Pakistan.

(4) The Attorney-General may, by writing under his hand addressed to the President, resign his office.'

3. The Attorney-General for Pakistan is a constitutional post and it cannot be left vacant. There is no mention of an acting Attorney-General in the Constitution. The law also requires notice to the Attorney-General under Order XXVIIA of the Code of Civil Procedure (and not to a DAG or Additional Attorney-General) in certain cases. Neither a DAG nor an Additional Attorney-General is a substitute for the Attorney-General. We may also assume that when a DAG or an Additional Attorney-General attends Court he/she does so on instructions received from the Attorney- General.

4. Therefore, the AGP (whoever that may be) and the Federal Law Secretary should be in attendance on the next date.

5. We also expect to be properly assisted on the next date of hearing.