M.A.NO.657 OF 1996 IN REFERENCES NOS 1 AND 2 OF 1996 : IN RE Versus M.A.NO.657 OF 1996 IN REFERENCES NOS 1 AND 2 OF 1996 : IN RE

ORDER

1. In the above four matters two are Constitutional petitions filed directly in this Court under Article 184(3) of the Constitution and the remaining two are References filed under Article 186 of the Constitution, which came up for hearing before a Bench of three Judges on 9-10-1996 when formal notice was issued to the Attorney-General as contemplated under Order XXVII-A, Rule 1, C.P.C. and respondents in both Constitutional petitions. Syed Sharifuddin Pirzada and Mr. S.M. War, Senior Advocates of this Court were requested to assist as amicus curiae. It was mentioned in the order that further hearing will be taken in hand by the Bench larger than the Bench of three Judges.

2. These matters came up for hearing before a Bench of five Judges on 20-10-1996 when the hearing commenced. On 21-10-1996 an application was filed by the Deputy Attorney-General under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 read with Article 187 of the Constitution with the prayer for constitution of Full Court Bench to hear these matters on the ground that they involved important question of interpretation of Articles of the Constitution.

3. In respect of the application mentioned above notices were issued to the parties for hearing in Chamber by me as Chief Justice of this Court on 22-10-1996, at 2-00 p.m. After sufficient hearing learned Attorney-General requested for time, which was allowed and further hearing took place on the following day in Chamber.

4. There are Supreme Court Rules available for regulating the procedure. Application of the party with a request for constitution of Full Court Bench will be covered by Order XI, which provides specifically for constitution of Benches by the Chief Justice. It is very clearly provided, therein that the Chief Justice may, in a fit case, refer any cause or appeal as aforesaid to a larger Bench. Order XXXIII, Rule 6 of the Supreme Court Rules is not attracted in the present case as it provides that the Court has inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The question with regard to the constitution of the Bench at the request of the party came up before this Court directly in the case of Mr. Zulfikar Ali Bhutto v. The State PLD 1978 SC 125 in which it was held that under the Constitution and the law regulating the practice of the Supreme Court, it is not only the privilege but the duty and obligation of the Chief Justice to personally preside over all important case's and to nominate judges for hearing cases which come up before the Court. No person has the right to ask the Chief Justice to abdicate this responsibility, nor has he the right to demand .a Bench of his own choice. This would be contrary to the well-established norms regulating the functioning of the superior Courts of this country. This question as such l came up again for consideration in the case of Malik Hamid Sarfaraz v. "J Federation of Pakistan and another PLD 1979 SC 991 in which it was held that it is the undisputed privilege and duty of the Chief Justice to constitute Benches for the hearing and disposal of cases coming before his Court; and no litigant or' lawyer can be permitted to ask that his case be heard by a Bench of his choice.

5. The learned Attorney-General has not been able to satisfy me as to why Full Court Bench should be' constituted for the hearing of these matters, particularly when the question with regard to the interpretation of Article 48 which requires that advice of the Prime Minister is binding on the President arises from the case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.' which is an authoritative judgment on the question of interpretation of Articles in the Constitution relating to the subject of judiciary and appointment of Judges in the superior judiciary. which was heard and decided by five Judges ,The question involved in the References and other allied matters mentioned above also is an off-shoot of interpretation of Article 48 in respect of appointment of Judges of the superior Courts and it is to be found out whether in that context an advice of the Prime Minister is binding on the President or not.

6. Having considered all aspects I had constituted Bench of five Judges for hearing of References and other connected matters and I do not find justification in accepting the request of the party to the proceedings to constitute Full Court Bench as reasonable. On this subject whether it is necessary to have Full Court Bench particularly for hearing of References, survey of case-law shows that in the legal history of Pakistan five References have been heard and disposed of from which in two, five Judges of the Supreme Court sat, because at that time only five Judges were working in the Supreme Court and likewise in the third case all the six Judges heard the Reference. In this respect, reference can be made to the cases published in PLD 1955 Federal Court 435; PLD 1957 SC 219 and PLD 1976 SC 57. There are two of such cases in which all the Judges did not sit for disposing of the References and one such case is reported in PLD 1973 SC 563 in which from total number of six Judges only five sat and in another case reported in PLD 1989 SC 75 yet from total number of 14 Judges, only 11 sat.

7. As against that in India 11 References have been heard and disposed of from which only in two References all the Judges sat for disposal of the References and those cases are reported in AIR 1944 Federal Court 73 and AIR 1951 SC 332. In the remaining nine cases all the Judges did not sit to hear the References but a lesser number of Judges was nominated by the Chief Justice to hear the References. Those cases are reported as under:

2. AIR 1943 Federal Court 13

3. 3 Judges heard from total number of 6 Judges. ;::.~_, , , . ,

4. AIR 1958 SC 956 '

5. . 7 Judges heard from total number of 12 Judges.

6. AIR 1960 SC 845 ...... E~; . ~.

7. 8 Judges heard from total number of 11 Judges.

8. AIR 1963 SC 1760 ,

9. 9 Judges heard from total number of 13 .fudges.

10. AIR 1965 SC 745

11. 7 Judges heard from total number of 12 Judges. ' ' ~" '-~1 .

12. -- AIR 1974 SC 1682

13. . 7 Judges heard from total number of 13 Judges.

14. -- AIR 1979 SC 478 .~, _.,;: ,:~:~ .

15. 7 Judges heard from total number of 16 Judges. 3--:3 . ;1 ~: ;,xs ;:.

16. AIR 1983 SC 996 .......... sr :,;z,;, ,.:,~ .. ; .,

17. ...... r-,

18. 3 Judges heard from total number of 17 Judges. :~ ` and lastly-, ,- ,'

19. AIR 1992 SC 522

20. 5 Judges heard from total number of 25 Judges.

21. From what is stated above it appears crystal clear that this is the exclusive function of the Chief

22. Justice to constitute Bench of any number of Judges and it is not at all mandatory or necessary for him to constitute Full Court Bench for hearing of the

23. References. Prayer in the application is, therefore, not justified and the application is dismissed.

24. M.B.A./R-294/S Application dismissed. ni L