ASAD ALI Versus FEDERATION OF PAKISTAN

SAIDUZZAMAN SIDDIQUI, J.--We disposed of the above cases by the following short order passed by us on the conclusion, of the hearing on 23-12-1997:-

"For detailed reasons to follow, we pass the following short order disposing of Constitutional Petition No.l-P of 1997, Akhunzada Behrawar Saeed v. Mr. Justice Sajjad Ali Shah and others; Constitutional Petition No.248-Q of 1997, Malik Asad Ali v. Federation of Pakistan and others and Constitutional Petition No.55 of 1997, Nihal Hashmi v. Federation of Pakistan and others, all three petitions filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as 'the Constitution') challenging directly the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, and a Miscellaneous Application No.992 of 1997 in Constitutional Petition No. 140-Q of 1996, Munir Ahmed v. Barra Khan and others, attacking collaterally the validity of the appointment of Mr. Justice Sajjad Ali Shah, as the Chief Justice of Pakistan.

2. Preliminary objections as to the maintainability of the above petitions have been raised on the grounds that the petitioners have no locus standi and no question of violation of any of the Fundamental Rights guaranteed under Chapter I of Part II of the Constitution arises in these cases.

3. Right of access to impartial and independent Courts/Tribunals is a fundamental right of every citizen. The exercise of this right is dependent on the independence of judiciary which can be secured only through appointment of persons of high integrity, repute and competence, strictly in accordance with the procedure prescribed under, the Constitution to the high office of the Judges of superior Courts. The selection of a person to the high office of the Chief Justice of Pakistan is a pivotal appointment for maintaining the independence of judiciary and for providing a free and unobstructed access to impartial and independent Courts/Tribunals to the ordinary citizens. Therefore, any deviation from the method prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan, would give rise to the infringement of the right of a citizen to have free, fair and equal access to an independent and impartial Court/Tribunal, thus violating the rights guaranteed under Articles 9 and 25 of the Constitution.

4. A similar contention raised about the maintainability of the petition in the case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, was repelled by this Court, as follows:-

'12. As regards the locus standi of Mr. Khairi, I may observe that Mr. Khairi has referred to Rule 165 of Pakistan Legal Practitioners and Bar Councils Rules, 1976, hereinafter referred to as the Rules, framed under section 55 of the Bar Councils Act, 1973, which provides as follows:-

165. It is the duty of Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. They should protest earnestly and actively- against the appointment or selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments, whether of a business, political or other character which may embarrass their free and fair consideration of the questions before them for decision. The aspiration of Advocates for judicial positions should be governed by an impractical estimate of their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves.'

He has also referred to the following cases:--

(i) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404;

(ii) Government of Sindh through Chief Secretary, Karachi v. Sharaf Faridi and others PLD 1994 9C 105;

(iii) S.P.Gupta's case AIR 1982 SC 149; and

(iv) Supreme Court Advocates-on-Record Association v. Union of India AIR 1994 SC 268.

13. Rule 165 of the Rules relied upon by Mr. Khairi enjoins the Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. It also enjoins the Advocates that they should protest earnestly and actively against appointment and selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments whether of business, political or other character which may embarrass their free and fair consideration of the questions before them for decision.

14. The above reports relied upon also support Mr. Khairi's contention. I am inclined to hold that not only a practising Advocate but even a member of the public is entitled to see that the three limbs of the State namely, the legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affect the public al large. The Fundamental Rights, which are enshrined in our Constitution and which also have the backing of our religion Islam, will become meaningless if there is no independent Judiciary available in the country. The independence of Judiciary is inextricably linked and' connected with the Constitutional process of appointment of Judges of the superior Judiciary. If the appointments of Judges are not made in the manner provided in the Constitution or in terms thereof, the same will be detrimental to the independence of Judiciary which will lead to lack of confidence among the people. In my view, the appellants/petitioners have locus standi as the Constitutional questions raised in the appeal as well as in the aforesaid Constitution Petition are of great public importance as to the working of the Judiciary as an independent organ of the State. Even otherwise, the question of locus standi in the present case has lost significance for the reason that we have admitted the above Constitution petition under Article 184(3) of the Constitution for examining the scope and import of the provisions relating to Judiciary. It may be observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution even suo motu without having any formal petition .... ... ... ... . . . ... . . . .

18. At this juncture, I may point out the right to have access to justice through an independent Judiciary is a Fundamental Right as held in the case of Sharaf Faridi (supra) by Saleem Akhtar, J. In this regard, reference may be made to the following observation:-

'The right of 'access to justice to all' is a well-recognized inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby on Constitution of United States, Second Edition, Vol. II at page 1709 where the term 'due process of law has been summarised.'

The above view has been affirmed by this Court in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Meman and 16 others PLD 1991 SC 341."

We arc, therefore, of the view that the petitioners, who are not only the citizens of Pakistan but practising Advocates and one of them is the Chairman of Civil Liberties, . Union of Pakistan, have necessary locus standi to file the above petitions. The petitioners have alleged violation of their fundamental rights to have free and equal access to the independent and impartial Court/Tribunal on account of appointment of Mr. Justice- Sajjad Ali Shah as the Chief Justice of Pakistan, in violation o: the provisions of the Constitution and, therefore, these petitions are maintainable.

5. Another preliminary objection is raised on behalf of respondent hlo.2 as to the competency of this Bench to hear these petitions. 1t is asserted that under the orders of Quetta and Peshawar Benches of this Court and the dissenting opinion of Mr. Justice Mamoon Kazi, the above cases should have been heard by the Full Court consisting of all the Judges of this Court minus Mr. Justice Sajjad Ali Shah. The present Bench which consists of only 10 out of 17 Judges of this Court, therefore, cannot hear these cases. An application in this behalf was also moved by the counsel for respondent No.2 before Hon'ble Acting Chief Justice which was forwarded to this Bench for disposal.

Out of the 17 Judges of this Court which constituted Full Court, Mr. Justice Sajjad Ali Shah could not sit on the Bench as he is one of the respondents in these cases. The next senior Judge Mr. Justice Ajmai Mian declined to sit on the Bench as he was of the view that his personal interest is involved in the cases. Therefore, while constituting the Full Court under the direction of Division Bench of this Court which passed orders to this effect in Constitutional Petition No.l-P of 1997, the Full Court comprising remaining 15 Judges was constituted. However, one of the Judges Mr. Justice Mukhtar Ahmad Junejo not only declined to participate in the Full Court proceedings but he proceeded on leave up to 23-12-1997. _The remaining four Hon'ble Judges were requested on 1st and 2nd December to attend the Full Court proceedings but they declined to sit on the Full Court sitting constituted under the orders of the Division Bench in Constitutional Petition No.l-P of 1997. In these circumstances, the remaining ten fudges of this Court constituted the Full Court in law as no Judge could be compelled against his wish to participate in the Full Court proceedings. The Full Court proceedings went on from day to day from 2nd December, 1997 and it was only on 15-12-1997 when the proceedings were nearing to a close that a written request was made on behalf of the respondent No.2 to include the remaining Judges also in the Full Court proceedings which could not be allowed in the above stated circumstances. We, accordingly, overrule the objection regarding incompetency of this Bench to hear these cases and reject the objection petition under Order XXXIII, Rule 6 of Supreme Court Rules, filed on behalf of respondent No.2.

6. This Court in the case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 while interpreting the provisions of Article 193 of the Constitution, relating to the appointment of Chief Justice of a Provincial High Court, on the basis of Convention followed in this behalf held, that the senior most Judge of the High Court, in the absence of any concrete and valid reason, has to be appointed as the Chief Justice of the High Court. We are of the view that the above rationale laid down by this Court for appointment of the Chief Justice of High Court applied with greater force in the case of appointment of Chief Justice of Pakistan under Article 177 of the Constitution, in view of the more consistent practice and Convention followed in this regard for appointment of Chief Justice of Pakistan in the past and especially in view of the provisions contained in Article 180 of the Constitution which recognises the principle of seniority as the sole criteria for appointment of Acting Chief Justice of Pakistan.

7. The question relating to the appointment of Chief Justice of Pakistan was not determined by this Court in Al-Jehad Trust case (supra) and was left open as is evident from the following paragraph in the short order announced by the Court on the conclusion of arguments in the case, which was subscribed by all the learned members of the Bench:-

'6. Article '177 of the Constitution envisages that the Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges of the Supreme Court shall be appointed by the President after consultation with the Chief Justice. As against this, for appointment of Acting Chief Justice of Pakistan, Article 180 provides that when the Office of the Chief Justice of Pakistan is vacant or he is absent or unable to perform the functions of his office, the President shall appoint the most senior of the other Judges of the Supreme Court to act as the Chief Justice of Pakistan. We are not going into the question of interpretation of these two provisions in the light of contention that criterion of the most senior Judge in the appointment of Acting Chief Justice of Pakistan for the reason firstly that in Constitutional Petition No.29 of 1994, which is directly filed in this Court, appointment of the Acting Chief Justice was challenged on the ground that when there was clear vacancy after retirement, instead of Acting Chief Justice, the incumbent should have been appointed on permanent basis being the most senior. During pendency of the petition, permanent Chief Justice of Pakistan was appointed and, therefore, the petitioner did not press the prayer to that extent vide Civil Miscellaneous Application 541-K of 1996, dated 10th March, 1996. Secondly, proper assistance by the learned counsel on this point was also not rendered. Thirdly, the cases are pending in which the same subject-matter is involved. For such reasons, we do not consider it proper to go into the question of interpretation of these two provisions.'

In view of the above quoted observations of this Court in Al-Jehad case (supra), we are firmly of the view that the question relating to the validity of the appointment of Mr. Justice Sajjad Ali Shah is not a past and closed issue but is very much a live controversy requiring authoritative determination by this Court. We are further of the view that the controversy regarding validity of the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, otherwise needs to be determined finally now to prevent any such recurrence in future and to settle the issue regarding appointment to the Office of Chief Justice of Pakistan, once for all for future guidance of the Executive for the following additional reasons:-

(i) ???????? That the decision in Al-Jehad Trust case (supra), was rendered by a Bench of this Court which was presided over by Mr.Justice Sajjad Ali Shah, and therefore, it could not effectively decide the controversy relating to the validity of appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, in view of the following provision contained in the Code of Conduct issued by the Supreme Judicial Council signed by all the Judges of the Superior Courts:-

'A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.'

(ii) ??????? That the failure on the part of Judges of this Court who were senior to Mr. Justice Sajjad Ali Shah to challenge his appointment as the Chief Justice of Pakistan for reasons of maintaining a high degree of comity amongst the Judges of this Court neither amounted to acquiescence in the unconstitutional appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, nor this omission on their part could create any estoppel against them much less against the petitioners who are the citizens of Pakistan and feel aggrieved by the unconstitutional appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan. There can, of course, be no estoppel against the law or against a Constitutional provision, and

(iii) ?????? That the unconstitutional appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, gave rise to a recurring cause of action which continues to arise so long he occupies the Office of Chief Justice of Pakistan."

We, therefore, hold that the appointment of Mr. Justice Sajjad Ali Shah i as the Chief Justice of Pakistan was wholly unconstitutional, illegal and contrary to the decision of this Court in Al-Jehad Trust case (supra) and accordingly, declare it invalid, unconstitutional and of no legal consequence.

8. Mr.Justice Sajjad Ali Shah was restrained by Quetta Bench of this Court through an interim order passed in Constitutional Petition No.248-Q of 1997 from performing any judicial or administrative function as Chief Justice of Pakistan, on 26-11-1997. This order was re-affirmed by the Bench on 28-11-1997 after hearing the petitioner's counsel, the Attorney-General and Mr. S.S. Pirzada, the learned amicus curiae. Subsequently, this Bench also adopted and re-affirmed the order passed by Quetta Bench on 28-11-1997 through its order dated 2-12-1997. TH6refore, all orders passed by Mr.Justice Sajjad Ali Shah on or after 26-11-1997 in his capacity as the Chief Justice of Pakistan are without lawful authority and of no legal effect. However, any orders passed or action taken by him prior to 26-11-1997 will not H be open to be challenged on the principle of exercise of power by Mr. Justice Sajjad Ali Shah as the de facto Chief Justice of Pakistan.

9. In consequence of the above declaration Mr. Justice Sajjad Ali Shah ceases to hold the Office of Chief Justice of Pakistan and reverts to the position of a Judge of Supreme Court in accordance with his seniority position amongst the Judges of this Court. The Federal Government conceded before us that there is nothing against Mr. Justice Ajmal I Mian, the most senior of all the Judges of this Court, from being appointed as the Chief Justice of Pakistan. The Federal Government is, accordingly, directed to denotify the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan and notify the appointment of Mr. Justice Ajmal Mian as the Chief Justice of Pakistan forthwith.

10. The petitions and the miscellaneous application mentioned above are disposed of in the terms stated above."

2. These are our detailed reasons for the above order. Constitution Petition No.248-Q of 1997, Constitution Petition No.I-P of 1997 and Constitution Petition No.55 of 1997 have been filed by three different individuals challenging the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan on the ground that neither at the time he was appointed as Chief Justice of Pakistan nor on the date of the announcement of judgment of this Court in the case of AI-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 nor even today he is the senior most Judge of the Supreme Court of Pakistan. The appointment of the Hon'ble Chief Justice of Pakistan is also challenged on various other grounds and prayer is made in some of the petitions for making a Reference against Mr. Justice Sajjad Ali Shah on the ground of alleged misconduct. Apart from the above mentioned three petitions filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as 'the Constitution'), in Civil Miscellaneous Application No.992 of 1997, in Civil Petition No. 140-Q of 1996 which arises from a civil suit, the constitution of Supreme Court is challenged and the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan has been collaterally attacked on the following grounds:-

(a) ??????? That the matter pertains to the enforcement of Fundamental Rights enshrined in Articles 25 and 27 of the Constitution;

(b) ??????? That undeniably, the question raised is of great public importance indeed national importance;

(c) ??? That with out a validity appointed chief justice this Hon?able court lacks competence to function as apex court of the country;

(d) ??????? That undeniably, the learned Chief Justice was not, and is not the most senior Judge of the Supreme Court. At the time of his appointment, the Hon'ble Chief Justice was junior to more Judges than one. Even now, he is not the most senior Judge. Therefore, the appointment of the Hon'ble Chief Justice is contrary to the principle of seniority;

(e) ??????? That the aforesaid appointment is also contrary to the rule laid down in the case popularly known as 'the Judges case';

(f) ???????? That the appointment of a Chief Justice, whether in a High Court or in Supreme Court of Pakistan has to be that of the most senior Judge. The Hon'ble Chief Justice is on record having expressed himself as under I have made recommendations for filling in five vacancies in the Supreme Court in strict accordance with the Constitution and the judgment in the case of 'Appointment of Judges of the superior Courts' pLD 1996 SC 324 following the rule of seniority which provides that if any Judge on the top of seniority list is bypassed, valid reasons are to he assigned by the Government which are Justiciable I have done nothing wrong. I have done nothing unlawful. I am of the considered opinion that legal course must follow and everything should be done strictly according to law.

(g) ??????? That the learned Chief Justice himself being the head of the Bench had rendered verdict in the Judges' case, is bound by it. Therefore, propriety demanded that in deference to the said verdict, the learned Chief Justice should have stepped down, in favour of the most senior learned Judge of this Court.

It is prayed that this Hon'ble Court may be pleased, first and foremost, to determine the question of the validity or otherwise of the Hon'ble Chief Justice's appointment and his continuance in office as it encompasses the very validity and the composition of the apex Court of itself, as an institution."

3. It may be mentioned here that Constitution Petitions Nos.248-Q of 1997 and I-P of 1997 were entertained by two separate Benches of this Court. then functioning at Quetta and Peshawar, respectively, while Constitution Petition No.55 of 1997 was initially presented by the petitioner, a practising Advocate, at Karachi Registry but the office declined to entertain it. The petitioner, accordingly, sent this petition to the Principal Seat, where it has been registered.

4. Constitution Petition No.248-Q of 1997 was entertained and admitted to regular hearing by a Bench of this Court at Quetta, consisting of Irshad Hasan Khan and Khalil-ur-Rehman Khan, JJ. At the time of admitting Constitution Petition No.24R-Q of 1997 to regular hearing, the Bench at Quetta passed an ad interim order on 26-11-1997 with notice for 28-11-1997 on the miscellaneous application filed in the petition suspending the notification, dated 5th June, 1994 appointing Mr. Justice Syed Sajjad Ali Shah as the Chief Justice of Pakistan. The above judicial order passed by the Quetta Bench was suspended on the same day in the evening by Mr. Justice Sajjad Ali Shah through an administrative order which reads as follows:-

"ORDER

It has been brought to my notice that a Constitutional petition under Article 184(3) of the Constitution has been filed at Quetta Registry by one Malik Asad Ali in which three respondents have been impleaded including me as respondent No.2 and the President of Pakistan as respondent No.3.

Under Order XXV of the Supreme Court Rules, 1980 a petition under Article 184(3) on the original side of this Court is to be filed only at the Principal Seat and not at any other Registry. In this respect there are orders and directions that if any such petition under that provision is filed at any other Registry, it is to be forwarded straightaway to the Principal Seat for orders to be obtained from the Chief Justice for its fixation before a proper Bench. Even registration number cannot be given to such petition at the Registry without the permission or express orders of the Chief Justice.

In the circumstances, I direct that the record of the above mentioned petition may be summoned immediately from the Quetta Registry for placement before me for further orders in this respect. If any orders have been passed in that petition, they shall be deemed to have not taken effect for the reason that proper procedure has not been followed.

The Honourable Judges present at Quetta Registry have acted without lawful authority and in such circumstances I direct the Assistant Registrar. Quetta Registry not to fix cases before them for disposal until further orders." ' .. ..,..,,.

5. The above administrative order of the Hon'ble Chief Justice, when brought to the notice of the learned Judges of Quetta Bench the same night, they re-assembled to consider the same along with an urgent application filed by the petitioner and following further order was passed on the night of 26-11-1997 by the Bench which then consisted of Irshad Hassan Khan, Nasir Aslam Zahid and Khalil-ur-Rehman Khan, JJ:-

"This application has been presented in the Judges' Rest House at Quetta this evening. The Assistant Registrar, Quetta, is present. He has placed on record the faxed copy of the orders received by his office. He adds that he has been conveyed the instructions of Mr. Justice Sajjad Ali to present this order at the Rest House.

2. We have gone through the order and in view of urgency of the matter, have heard Mr. Muhammad Aslam Chishti, learned counsel for the petitioner, at some length in support of the instant application, which is self-explanatory. The position has been correctly stated in the application. We deem it fit and proper to declare that the impugned executive order of the Hon'ble Chief Justice (under suspension) is nullity and is to be ignored. The order passed by a Bench of two Hon'ble Judges of this Court at Quetta today in C.P. No.248-Q of 1997 still holds the field and is hereby reiterated and confirmed.

3. The application is disposed of accordingly."

(6)Notwithstanding the fact that the Quetta Bench had issued notices to the respondent ? for 28-11-1997 for further consideration of the ad interim orders l in Constitutional Petition No. 248-Q of 1997 in the morning of -1997, a Bench consisting of Sajjad Ali Shah, C.J., Muhammad Bashir ;iri, Mamoon Kazi, Ch. Muhammad Arif and Munir A. Shaikh, JJ. at the pal Seat took up the case suo motu on 27-11-1997 and without hearing any el or party passed the following order by a majority of 4 to 1:-

ORDER

"Mr. M.A. Farooqi, Additional Registrar of this Court, yesterday informed the Chief Justice that he had learnt that at Quetta Registry two honourbale Judges, namely, Mr. Justice Irshad Hasan Khan and Mr. Justice Khalil-ur-Rehman Khan had taken cognizance of a Constitutional petition filed under Article 184(3) of the Constitution by one Malik Asad Ali in which three respondents have been impleaded including the Chief Justice as respondent No.2 and President of Pakistan as respondent No.3. Incidentally, at that time, the remaining four Judges who are sitting at Islamabad, were present m the Chamber of the Chief Justice. The Additional Registrar was asked to obtain further information from the Quetta Registry and also copy of the order and the petition. After some time copy of the order was obtained in which interim relief had been granted directing that the notification dated 5-6-1994 of the appointment of Chief Justice of Pakistan is held in abeyance until further orders and further that he shall cease to perform judicial and administrative functions and powers of the Chief Justice of Pakistan until further orders subject to notice.

In such circumstances, order was passed by the Chief Justice sending for the record of that Constitutional petition for registration and hearing at the Principal Seat as is contemplated under Order XXV of the Supreme Court Rules, 1980 which provides that applications for enforcement of fundamental rights under Article 184(3) of the Constitution shall be filed and registered only at the main Registry at Islamabad. It was also directed in the said order that the orders passed by the Bench at Quetta in that petition shall be deemed not to have taken effect for the reason that the proper procedure had not been followed.

Today, (27-11-1997), the matter had to be taken up for consideration in the Court before the Bench of five Judges who are available at Islamabad, but the order of the Chief Justice calling for the record of the case has not been complied with and the record has not been sent, and the Court was informed by the office that the record is in the custody of Mr. Justice Irshad Hasan Khan who has refused to send the same. The Court was jam-packed with members of the Parliament and supporters of Pakistan Muslim League (Nawaz Group) and they started raising objections to the sitting of the Chief Justice the Bench and pointing out that there was no Supreme Court and the Bench was, not properly constituted. Several Advocates, without permission. addressed the Court criticizing the constitution of the Bench and behaved in a manner which was not only unruly, but also uncalled for. In any case, finally, order is passed that the orders passed by the Bench of this Court at Quetta are not to be given effect to as the matter would be hear at the Principal Seat as directed earlier. The objections raised by a number ??????????? of lawyers with regard to the constitution of the Bench and the request that the Chief Justice should not sit on the Bench have been taken notice of which would be decided later at the proper stage,. This order is passed by majority of four to one as one of us, namely, Mr. Justice Mamoon Kazi, has not agreed to the above order.

In such -circumstances the Court rose for the day. The telephonically recorded statement of Mr. Abdul Karim, Assistant Registrar, Quetta, is placed on the record."

7. The above order passed by the learned Judges at the Principal Seat at Islamabad, appears to have been communicated to the Bench at Quetta through the Additional Registrar of this Court, Mr. M.A. Farooqui at about 8 p.m. on 27-11-1997. An incomplete copy of the above order (it did not contain the dissenting note of Mamoon Kazi, J.) was also faxed to the learned Judges at Quetta'late in the night of 27-11-1997.

8. Another development, in the meantime, took place. A Bench of this Court working at Peshawar entertained a direct petition (C. P.1-P of 1997) under Article 184(3) of the Constitution wherein a Senior Advocate of this Court had challenged the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan. This petition was admitted by the Peshawar Bench of this Court consisting of Saiduzzaman Siddiqui and Fazal Ilahi Khan, JJ. on 27-11-1997 and following order was passed:-

"This Constitution petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan was presented in Court at about 10 a.m. on the ground that the office has refused to entertain the petition asserting that this petition is to be filed at the Principal Seat. The office has relied on Order XXV of the Supreme Court Rules which contains the following notes:

'Original jurisdiction.---Any application or petition falling under this Order may be filed and registered only in the main Registry at Rawalpindi.'

2. At the time we assembled for Court hearing at 11-00 hours, one of the learned Member of the Bench, Mr. Justice Mukhtar Ahmad Junejo, expressed his inability to hear this case and so the same has been heard by us, the remaining two Members of the Bench.

3. We have gone through the Rules framed for regulating the conduct of proceedings before this Court under Article 191 of the Constitution of Islamic Republic of Pakistan and we have not been able to discover anything in this Article prohibiting filing of a petition at the Branch Registry under Article 184(3) of the Constitution. In any case the Rules framed under Article 191 of the Constitution are regulatory in nature and they do not affect the jurisdiction of the Court which is conferred under Article 184 (3) of the Constitution. We, therefore, see no justification for the office to have declined to entertain this petition at Branch Registry, Peshawar. In any case looking to importance and urgency in the matter, the compliance of any such rule is dispensed with. The office objection is, accordingly, overruled. Accordingly, the office is directed to register the petition, which has been directly entertained by us.

4. The questions raised in this petition are of great public importance and, in fact, affect the very working and existence of this Court. Several important questions relating to interpretation of Constitution have been raised in this petition and they require a thorough consideration by a larger Branch. We, accordingly, admit this petition and direct that notices be issued to respondents as well as Attorney General of Pakistan. This petition should be fixed for hearing along with the petition which has already been admitted by a Bench of this Court at Quetta.

5. There is an interim application in this case for grant of an injunction restraining the Hon'ble Chief Justice of Pakistan from performing his functions. In our view, it is not necessary to pass an order on this application for the reason that a similar order has already been passed by a Bench of this Court at Quetta, whereby the appointment of the Hon'ble Chief Justice has been suspended and in consequence there of, he is unable to perform his functions as such. However, it has been pointed out by the petitioner, who is a senior counsel of this Court, that in spite of the order passed by the Quetta Bench, the Hoh'ble Chief Justice through an administrative order, has suspended the operation of the order passed by the Quetta Bench of this Court. We are unable to assimilate this contention, as the Hon'ble Chief Justice is himself a respondent in the petition in which the Bench at Quetta has passed interim order and in consequence thereof, he has been restrained from passing any judicial or administrative order in his capacity as the Chief Justice of Pakistan. However, it is open to the petitioner or any other affected party to raise this plea before the Bench hearing such petitions. Since the Hon'ble Chief Justice, as a consequence of the order passed by the Quetta Bench of this Court, will not be in a position to discharge his judicial or administrative functions, a direction is sought to be issued to the Registrar of the Supreme Court of Pakistan that he should place all these cases for consideration before the senior puisne Judge, Mr. Justice Ajmal Mian, and obtain orders from him accordingly. Since these cases involve a very important question, in our view, it will be appropriate that this matter, along with other similar matters, be placed before the Full Court constituting all the Judges of Supreme Court, except the Hon'ble Chief Justice of Pakistan, who is a respondent in the petition, for an authoritative pronouncement on the subject. The Registrar, Supreme Court of Pakistan, is accordingly, directed to take immediate steps and place the matter forthwith before the learned puisne Judge, Mr. Justice Ajmal Mian, at Karachi and obtain appropriate instructions for constitution of the Bench for hearing of these cases."

9. The Quetta Bench when took up Constitution Petition No.248-Q of 1997 on 28-11-1997, in pursuacne of the notices issued in the case on 26-11-1997, had before it the judicial order passed by the Peshawar Bench in Constitution Petition No. i-P of 1997 at about 11-00 a.m. on 27-11-1997 and the order passed at the Principal Seat by 5 Judges (with majority of 4 to 1) at about 12 noon on 27-11-1997. The learned Judges of Quetta Bench after hearing the petitioner's counsel, the learned Attorney-General and Mr. S.S. Pirzada, the learned amicus curiae, came to the conclusion that order passed by the five learned Judges at the Principal Seat (with majority of 4 to 1) was a mere affirmation of the earlier administrative order of Hon'ble Chief Justice passed on 26-11-1997 and therefore, this order too was of an administrative nature which could not override the judicial order dated 26-11-1997. The learned Judges of the Quetta Bench, accordingly, after considering the arguments of the counsel passed a detailed order, operative part whereof was as follows:-

"15. After hearing learned counsel, the learned Attorney-General and Syed Sharifuddin Pirzada, learned amicus curiae we direct that as soon as orders are passed in the light of the orders of the Peshawar Bench of this Court in Constitutional Petition NO.l-P of 1997 constituting a Bench of the Full Court minus the Honourable Chief Justice (under suspension), the file of this case may be sent to the Principal Seat or at the Registry where the Full Court will hold its sitting.

16. On the question of interim relief, the learned counsel for the petitioner, the learned Deputy Attorney-General as well as Mr. Sharifuddin Pirzada, amicus curiae are of the view that the interim orders be passed restraining the Chief Justice (under suspension) from performing administrative or judicial functions till further orders by the Full Court minus the Honourable Chief Justice. We agree and pass orders accordingly."

On the same date i.e. 28-11-1997, an application was moved before the Peshawar Bench, in Constitutional Petition 1-P of 1997 by the petitioner,complaining that the order passed by it on 27-11-1997 was not complied with. In the course of hearing of this application the Peshawar Bench received a copy of the administrative order through fax, passed by Mr. Justice Ajmal Mian, the learned senior puisne Judge, at Karachi. The Bench at Peshawar, after hearing the petitioner and taking into consideration the order passed by the learned senior puisne Judge, passed the following further order in Constitutional Petition No. l-P of 1997, on the miscellaneous application:-

"The petitioner in this application has complained that the order passed by us yesterday on his petition and miscellaneous application has not yet been complied with by the Registrar of Supreme Court and efforts are being made to- frustrate its implementation. The office has confirmed that the copy of the order passed by us, yesterday in the above petition, has been duly served on the Registrar and the Additional Registrar of Supreme Court. Meanwhile conflicting orders have been passed by the Benches of this Court functioning at the Principal Seat and at Quetta Circuit creating a very tense and alarming situation which is threatening the very existence of this august institution.

(2) ?? In these circumstances, in order to save the situation frog: taking a disastrous turn, we call upon all Stale functionaries, to fulfil their Constitutional obligations and acting in aid of Supreme Court in accordance with the provisions of Article 190 of the Constitution of Islamic Republic of Pakistan to ensure that the order passed by us yesterday in the above petition is complied with in letter and spirit and necessary arrangements are made for holding of the Full Court Session at the Principal Seat at Islamabad, for hearing of the above and all other similar Constitutional matters.

3. While we were hearing the above application, we received a fax from the Karachi Registry communicating the order passed by senior puisne Judge, Mr. Justice Ajmal Mian, after receipt of our order dated 27-11-1997, which reads as follows:-

'I am in receipt of an order dated 27-11-1997 by Fax through Peshawar Registry passed by Saiduzzaman Siddiqui and Fazal Ilahi Khan, JJ. in Constitution Petition No. l-P of 1997 (Akhunzada Behrawar Saeed v. Mr. Justice Sajjad Ali Shah and others), wherein in the concluding paragraph, the following has been observed:-

Since the Hon'ble Chief Justice, as a consequence of the order passed by the Quetta Bench of this Court, will not be in a position to discharge his judicial or administrative functions, a direction is sought to be issued to the Registrar of the Supreme Court of Pakistan that he should place all these cases for consideration before the senior Puisne Judge Mr. Justice Ajmal Mian, and obtain orders from him accordingly. Since these cases involve a very important question, in our view, it will be appropriate that this matter along with other similar matters, be placed before the Full Court constituting all the Judges of Supreme Court except the Hon'ble Chief Justice of Pakistan, who is a respondent in the petition, for an authoritative pronouncement on the subject. The Registrar, Supreme -Court of Pakistan, is accordingly, directed to take immediate steps and place the matter forthwith before the learned Puisne Judge, Mr. Justice Ajmal Mian, at Karachi and obtain appropriate instructions for constitution of the Bench for hearing of these cases.'

2. As I believe in the maxim "nemo debt esse judex in propria sua causa" (i.e. no man can be Judge in his own cause) and since I am the senior most Judge, I would not like to sit on the Bench which may hear the petitions relating to the appointment of the Hon'ble Chief Justice including the above petition and, therefore, I would not like to pass any administrative order in respect thereof, particularly keeping in view Article IV of the Judges' Code of Conduct, which provides as follows:-

'A Judge must decline resolutely to act in a case involving his own interest, including those of persons he regards and treats as near relatives or close friends. A Judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers.

To ensure that justice is not only done, but is also seen to be done, a Judge must avoid all possibility of his opinion or action in any case being swayed by any consideration of personal advantage, either direct or indirect.'

3. I would, therefore, direct the Registrar that instead of sending the file of the above case to me pursuant to aforesaid judicial order of this Court, the same may be sent back to the Bench which had passed the order, namely, Saiduzzaman Siddiqui and Fazal Ilahi Khan, JJ. A copy of this order may be faxed to the Hob'ble Bench for information.

4. As the Hon'ble senior puisne Judge has declined to preside over the Full Court and expressed his inability to constitute a Full Court for the reasons stated in his order reproduced above, we direct that the matter may be placed before the next Senior Judge for constituting the Full Court for hearing of the above case in terms of our order dated 27-11-1997.

5. A copy of this order may be sent through Fax to the President of Pakistan, Prime Minister of Pakistan, Governors and the Chief Ministers of all the four Provinces, the Chiefs of Army, Navy and Air Force for compliance. A copy of this order may also be faxed to Registrar, Supreme Court, Islamabad, for immediate compliance. Copies of this order may also be sent to the Registries of this Court functioning at Lahore, Karachi and Quetta, with a request to the Hon'ble Judges present there to make arrangements for their presence at Islamabad, on the date the Full Court hearing takes place there. "

11. The above order was followed by the following order passed by one of us (Justice Saiduzzaman Siddiqui) constituting Full Court for hearing of Constitutional Petition No.248-Q of 1997, Constitutional Petition I-P of 1997 and all other similar matters at the Principal Seat on 1-12-1997 at 9-00 a.m.:-

"In compliance with the orders of the learned Bench of this Court passed in Constitution Petition No. l-P of 1997 on 27-11-1997 and 28-11-1997, in my capacity as the next Senior Judge of Supreme Court, I constitute the Full Court consisting of the following learned Judges of this Court to hear the above petition and all other similar petitions pending before the Supreme Court, at the principal seat Islamabad, on 1-12-1997 at 9 a.m.:-

(1) Mr. Justice Saiduzzaman Siddiqui

(2) Mr. Justice Fazal Ilahi Khan

(3) Mr. Justice Irshad Hasan Khan ?

(4) Mr. Justice Mukhtar Ahmad Junejo ?????

(5) Mr. Justice Raja Afrasiab Khan

(6) Mr. Justice Muhammad Bashir Jehangiri

(7) Mr. Justice Nasir Aslam Zahid

(8) Mr. Justice Munawar Ahmad Mirza

(9) Mr. Justice Khalil-ur-Rehman Khan

(10) Mr. Justice Sheikh Ijaz Nisar

(11) Mr. Justice Mamoon Kazi

(12) Mr. Justice Abdur Rehman Khan

(13) Mr. Justice Sh. Riaz Ahmad

(14) Mr. Justice Ch. Muhammad Arif

(15) Mr. Justice Munir A. Sheikh

2. The Registrar and Additional Registrar Supreme Court are directed to make necessary arrangements for Full Court Session at Islamabad on 1-12-1997, accordingly.

A request may be sent through fax to all the learned Judges functioning at Lahore, Quetta and Karachi Registries, to make arrangements to reach Islamabad, before 1-12-1997."

12. It was in these circumstances, that all the Hon'ble Judges of this Court assembled at Islamabad, on 1st of December, 1997. However, in the meantime, in the evening of 30th November, 1997, the Hon'ble Chief Justice (under restraint) through an administrative order cancelled the Full Court Sitting fixed on 1-12-1997 at Islamabad, and the Registrar of Supreme Court came to deliver the above administrative order of Hon'ble Chief Justice (under restraint) at the residence of Justice Saiduzzaman Siddiqui, which was declined by the latter on the ground that it amounted to interference with the pending judicial proceedings. The Registrar was, however, advised to place the administrative order of Hon'ble Chief Justice (under restraint) before the Full Court on 1-12-1997 if the Hon'ble Chief justice (under restraint) so desired or directed him. The matter however, did not rest there, as during the late hour of the night of 30-11-1997, the copies of the above administrative order passed by the Hon'ble Chief Justice (under restraint) cancelling the Full Court sitting and asking the Hon'ble Judges not to attend the Full Court sitting and abide by the roster issued by him, were delivered at the residences of all the Hon'ble Judges of this Court. As the above administrative order of Hon'ble Chief Justice (under restraint) was likely to cause disruption of the Full Court sitting fixed on 1-12-1997 besides causing chaos and confusion in the minds of the general public, the Hon'ble Judges met at the Rest House No. 12, at Islamabad, and after deliberation issued the following clarification in the night of 30-11-1997:-

"An administrative order passed by Mr. Justice Sajjad Ali Shah, the Honourable Chief Justice (under restraint) has been delivered to us at our residences declaring the convening of Full Court for hearing of the cases listed in Supplementary Cause List No.405 of 1997, as illegal.

We are sorry to say that in spite of judicial order of a three members' Bench of this Court passed in Constitutional Petition No. 248-Q of 1997 on 28-11-1997, restraining the Hon'ble Chief Justice from performing administrative or judicial functions, the Hon'ble Chief Justice (under restraint) has not only fixed cases before two Benches; one consisting of himself and four other learned Judges of this Court and another Bench consisting of Hon'ble Chief Justice (under restraint) and two other learned Judges of this Court, but has also issued the above administrative order.

The issuance of above cause list, fixing of cases before the two Benches mentioned above and the above mentioned administrative orders are wholly illegal and of no legal effect in view of the order passed by the Quetta Bench on 28-11-1997 in Constitutional Petition No. 248-Q of 1997 and, therefore, are to be totally ignored.

We may also point out that the present Full Court has been convened in pursuance of the direction given by a Bench of this Court functioning at Peshawar in Constitutional Petition No. l-P of 1997. The objection regarding entertainment of Constitutional petitions under Article 184(3) of the Constitution at places other than Principal Seat has been fully dealt with and all the points raised now in above administrative order of Hon'ble Chief Justice (under restraint) have been fully explained and answered in two orders passed by the two different Benches of this Court functioning at Peshawar and Quetta dated 27-11-1997 and, therefore, they need not be repeated here. We will, however, refrain from making any comments on the merits of the appointment of Hon'ble Chief Justice (under restraint) raised in the above administrative notes as the matter is now sub judice before the Full Court and will be dealt with judicially.

We, therefore, hold that any administrative order passed by the Hon'ble Chief Justice (under restraint) and any judicial order passed by a Bench presided over by the Hon'ble Chief Justice (under restraint) is to be totally ignored by all and sundries as without lawful authority and of no legal effect.

A copy of this order may be brought to the notice of the two Benches presided over by the Hon'ble Chief Justice (under restraint)."

13. The hearing before the Full Court was, however, postponed on 1-12-1997 at the request of the office-bearers of Supreme Court Bar Association, Bar Councils and other Bar Associations of the country. Behind the scene, efforts were also made to hold only one sitting of Full Court to hear all important Constitutional matters including the above petitions. The efforts, however, did not succeed with the result, the Hon'ble Chief Justice (under restraint) issued the fresh sitting of roster for 2-12-1997 nominating only 7 Judges on the Bench to hear the above petitions, while other two Benches of 5 and 3 Judges respectively presided over by Hon'ble Chief Justice (under restraint) were constituted to hear other Constitutional matters. Another cause list of Full Court consisting of 15 Hon'ble Judges was also issued for 2-12-1997 and all the above petitions were listed for hearing before the Full Court. However, when the Full Court assembled for hearing on 2-12-1997, only ten Hon'ble Judges out of fifteen opted to sit on the Full Court hearing while the remaining five Judges decided not to attend the full Court but to sit on the two other Benches constituted by the Hon'ble Chief Justice (under restraint) presided over by him. While the full Court consisting of ten Judges was hearing the above petitions, the Attorney-General sought permission to interrupt the proceedings to inform the Court that a three-member Bench presided over by the Hon'ble Chief Justice (under restraint) consisting of Sajjad Ali Shah, C.J. (under restraint), Muhammad Bashir Jehangiri and Ch. Muhammad Arif, JJ. on an interim application has suspended the operation of 13th Amendment in the Constitution, unanimously adopted by the two Houses of Parliament which was assented to by the President of Pakistan on 3rd April, 1997. The learned Attorney-General further informed the Court that the effect of suspension of ,13th Amendment of the Constitution is, that the repealed Article 58(2)(b) of the Constitution stands revived, thereby meaning that the President of Pakistan is vested with the powers to dissolve the National Assembly in exercise of his discretionary power. The learned Attorney-General also informed us that the interim order suspending the 13th Amendment in the Constitution was passed by the Bench presided over by the Hon'ble C.J. (under restrain) while the counsel for the Federal Government was in the midst of his arguments and a copy of the order was rushed to the Presidency. Realizing the graveness of the situation and to save the country from disastrous consequences, flowing from the orders passed by the Bench presided over by the Hon'ble C.J. (under restraint) suspending a provision of the Constitution through interim order, the Full Court temporarily suspending the hearing of the above cases for a while, entertained the oral request of the learned Attorney-General and passed the following order in the Court staying the order passed by the Bench presided over by the Hon'ble C.J. (under restraint):--

"During the course of hearing of Constitution Petition No. 248-Q of 1997 and other connected matters, the learned Attorney-General for Pakistan stood and informed us that a 3 Members Bench presided over by the Hon'ble Chief Justice (under restraint) has passed an order suspending the operation of 13th Amendment passed unanimously by the Parliament of Pakistan. We are sorry to say that in our order which was passed by 9 of us on 30-11-1997, declaring that any order passed by a Bench presided over by the Hon'ble Chief Justice (under restraint) will not be given effect, the order has been made today. We have noted this with regret. We, accordingly, direct that it may be brought to the notice of the Federal Government and the President of Pakistan and all other functionaries of the Government that the order passed by the Bench comprising Hon'ble Chief Justice (under restraint) Mr. Justice Muhammad Bashir Jehangiri and Mr. Justice Muhammad Arif, has been stayed and will not be acted upon."

14. In the abovestated background, the Full Court further took the view that in order to protect, preserve and maintain the dignity of institution and in order to provide a smooth working of the Court during the hearing of the above cases, wherein the legality of the appointment of Hon'ble Chief Justice (under restraint) was questioned, it was necessary to pass an interim order in these cases. Accordingly the following further order was passed by us, immediately after passing of the above reproduced order:-

"While we were in the midst of arguments on Constitutional Petition No.248-Q of 1997 in which the question of validity of the appointment of Honourbale Chief Justice of Pakistan, Mr. Justice Sajjad Ali Shah is in question, we were informed by the learned Attorney-General that another Bench of this Court comprising Mr. Justice Sajjad Ali Shah, the Hon'ble Chief Justice (under restraint), Mr. Justice Muhammad Bashir Jehangiri and Mr. Justice Muhammad Arif has passed an order suspending 13th Amendment in Constitutional Petition No.35 of 1997. We are sorry to note that under the orders of Quetta Bench of this Courl passed in Constitutional Petition No.248-Q of 1997 on 28-11-1997. a very specific order was made that during the pendency of the petition, Honourable Chief Justice (Mr. Justice Sajjad Ali Shah) shall no; perform any judicial or administrative functions. We adopt and reaffirm the said order and accordingly direct the Federal Government as well as the President of Pakistan to make an immediate order under Article 180 of the Constitution appointing Mr. Justice Ajmal Mian, the senior most Judge of this Court as Acting Chief Justice of Pakistan. In the meantime, as this appointment is likely to take some time, we further direct that pending appointment of Acting Chief Justice, Mr. Justice Ajmal Mian, the senior most Judge of this Court will discharge administrative as well as judicial functions of Chief Justice of this Court including the constitution of the Benches. The office is directed that no further order constituting the Benches should be taken from the Hon'ble Chief Justice (under restraint). Such orders and other orders regarding day to day working and administration of Court shall be obtained from Mr. Justice Ajmal Mian until appointment of Acting Chief Justice.

2. A copy of this order shall be sent to the Federal Government as well as to the President by fax today, for compliance."

In compliance with the above order of Full Court, the learned senior punisne Judge took over the administrative control of the Court on 2-12-1997 and was later sworn in as the Acting Chief Justice of Pakistan on 3-12-1997.

15. The hearing of above petitions thereafter, continued before the Full Court from day to day. The petitioners and their counsel, the learned Attorney General and the learned amicus cruiae Mr. S.S. Pirzada, concluded their arguments by the 4th of December, 1997. At this stage, some of the counsel present in the Court and one Mr. Shahid Orakzai, a free lance journalist made oral request for permitting them to address the Court on behalf of public at large, as the matter was of a great public importance. The Court asked them to make application in writing putting in precise form the points on which they wish to address the Court. Only Mr. Ahmed Raza Khan Kasuri, Advocate, filed a written application stating the points on which he wished to address the Court. The Court accepted the application of Mr. Ahmed Raza Khan Kasuri, Advocate, and adjourned the case to 5-12-1997 for his arguments While Mr. Ahmed Raza Khan Kasuri was addressing the Court on -5-12-1997, Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court appeared before the Court and informed us that he has been engaged by Mr. Justice Sajjad Ali Shah (respondent No.2) to defend the proceedings and he needed some time to file his reply to these petitions. Accordingly, on conclusion of the arguments of Mr. Ahmed Raza Khan Kasuri, Advocate, we adjourned the hearing of these cases to 10-12-1997 at the request of Mr. Abdul Hafeez Pirzada, with permission to file the reply to the above petitions before the next date of hearing.

16. Mr. Abdul Hafeez Pirzada submitted a written reply on behalf of Mr. Justice Sajiad Ali Shah wherein besides raising the objection regarding competency of this Bench to hear these cases, he contended that the entire proceedings were coram non judice. On 10-12-1997 when we assembled for hearing of the above cases, Mr. Sikandar Hayat Khan, an Advocate of this Court, requested that he may be permitted to address the Court on behalf of the public at large in view of the general importance of the issues arising in these cases, before Mr. Abdul Hafeez Pirzada is heard on behalf of Mr.Justice Sajjad Ali Shah. Mr. Pirzada supported the request of Mr. Sikandar Hayat Khan, Advocate. We, accordingly, heard Mr. Sikandar Hayat Khan on behalf of public at large and on conclusion of his arguments, Mr. Abdul Hafeez Pirzada commenced his arguments on 10-12-1997 which continued until 18th of December, 1997. On 18-12-1997, Mr. Abdul Hafeez Pirzada before resuming his remaining arguments in these cases complained that the Federal Government has now filed a reply to the preliminary objections filed by him on behalf of respondent No.2, wherein besides raising various factual controversies, it has identified itself with the petitioners which has prejudiced respondent No.2 in his defence in these cases. We, therefore, permitted Mr. Abdul Hafeez Pirzada to file a reply to the written statement filed on behalf of Federal Government and further observed that if necessary, we would also hear Mr. Abdul Hafeez Pirzada by way of reply to the contentions of the counsel for Federal Government. Mr. Abdul Hafeez Pirzada, accordingly, completed his submissions in the above cases on 18-12-1997 and on conclusion of his arguments he stated before us that Mr. Ghulam Hussain Abbasi, Advocate, who also represented Mr. Justice Sajjad Ali Shah in these cases will address the Court on the factual controversies in the cases. At this stage, Mr. Ahmed Raza Kasuri, Advocate, also made a request that he may also be heard again on behalf of Mr. Justice Sajjad Ali Shah, as after his earlier address to the Court on 5-12-1997 on behalf of public at large, he has been engaged by Mr. Justice Sajjad Ali Shah, to represent aim in these cases. As we had already heard Mr. Abdul Hafeez Pirzada for respondent No.2 at length, we were not inclined to grant the above request of Mr. Ahmed Raza Khan Kasuri, Advocate. Accordingly, the above cases were adjourned to 19-12-1997 for hearing the arguments of Mr. Ghulam Hussain Abbasi, on behalf of respondent No.2. On 19-12-1997, while we were hearing the arguments of Mr. Ghulam Hussain Abbasi, in these cases, a letter addressed by Mr. Justice Sajjad Ali Shah to his Advocate-on-Record Mr. Mehr Khan Malik, was placed before us which reads as under:-

"Dear Mr. Mehr Khan Malik,

I am respondent in Constitutional Petition No.55 of 1997 (Nehal Hashmi v. Federation of Pakistan and others) in which I authorise Mr. Ahmed Raza Khan Kasuri, Advocate, Supreme Court of Pakistan, to appear on my behalf. Request may be made to the Court that he should be allowed to address the Court on my behalf with assurance that he would not argue any point which is already covered by Mr. Abdul Hafeez Pirzada, Senior Advocate, Supreme Court of Pakistan.

Yours sincerely,

(SAJJAD ALI SHAH)

Mr. Mehr Khan Malik, Advocate-on-Record, Supreme Court of Pakistan, Islamabad. "

17. In view of the above request made by Mr. Justice Sajjad Ali Shah, we heard Mr. Ahmed Raza Khan Kasuri, Advocate, for the second time after close of the arguments of Mr. Ghulam Hussain Abhasi. We also heard on 19-12-1997 Mr. Shahid Orakzai, a free lance journalist on his request on behalf of public at large. Thereafter we heard the learned counsel for the Federation and the learned counsel for the petitioners in reply to the preliminary objections raised by Mr Abdul Hafeez Pirzada, regarding maintainability of these petitions. On conclusion of the arguments of the learned counsel for the Federation and the petitioners, Mr. Naeem Bukhari, who was assisting Mr. Abdul Hafeez Pirzada in the cases made a request before us for adjournment of these cases until 23-121997 to enable Mr. Abdul Hafeez Pirzada, who had gone out of station, to appear and briefly reply to the arguments of the counsel for Federation. Although we had already heard at length Mr. Abdul Hafeez Pirzada, in these cases besides hearing two other counsel, Mr. Ghulam Hussain Abbasi, and Mr. Ahmed Raza Khan Kasuri, who represented Mr. Justice Sajjad Ali Shah in these cases, and therefore, it was not necessary to grant further hearing to Mr. Abdul Hafeez Pirzada but in the interest of justice, we allowed the request made on behalf of Mr. Abdul Hafeez Pirzada and adjourned the cases to 23-I2-1997 However, when we assembled in the Court in the morning on 23-12-1997 a request was made on behalf of Mr. Abdul Hafeez Pirzada for adjournment of these cases until 11-30 a.m. on the ground that the P.I.A. flight could not take off from Karachi on account of clement weather. This request was granted on the specific understanding that in case Mr. Abdul Hafeez Pirzada is unable to reach the Court at 11-30 a.m. Mr. Ahmad Raza Khan Kasuri, the other counsel representing Mr. Justice Sajiad Ali Shah in the cases, who was present in the Court, would address the Court. Accordingly, when we reassembled in the Court at 11-30 a.m. and found that Mr. Abdul Hafeez Pirzada was not present, we heard Mr. Ahmad Raza Khan Kasuri and on conclusion of the hearing of the cases passed the short order reproduced earlier in this judgment disposing of the above cases.

18. At this stage we may mention here that on 15-12-1997, while arguingthese cases Mr. Pirzada presented before us a copy of the application moved before the Hon'ble Acting Chief Justice, under Order XXXIII, Rule 6 of Supreme Court Rules. 1980, praying that the five remaining Judges of this Court who had earlier declined to sit on the Full Court Session be included in this Bench, as its Members. Since this application was addressed to the Hon'hle Acting Chief Justice, we considered it appropriate to defer its consideration until its disposal by the Hon'ble Acting Chief Justice. The Hon'ble Acting Chief Justice on 17-12-1997 passed the following administrative order on the above application filed on behalf of respondent No.2:-- ??

"The application may be placed before the Bench which has seized of the cases and which has been hearing the same for over the two weeks for considering above request."

19. We considered the above application in Court on 23-12-1997 and for reasons to follow later in this judgment rejected the same. Similarly, we also rejected Civil Miscellaneous Application No. 1042 of 1997 filed by Mr. Muhammad Akram, Advocate, for impleading him as a party in these cases on 22-12-1997.

20. We have heard Mr. Abdul Hafeez Pirzada at great length. We have also heard Mr. Ghulam Hussain Abbasi, another senior counsel of this Court and Mr. Ahmad Raza Khan Kasuri for Mr. Justice Sajjad Ali Shah. Mr. Ahmed Raza Khan Kasuri, and Mr. Muhammad Hayat, Advocates, while arguing these cases on behalf of public at large supported the contentions of Mr. Abdul Hafeez Pirzada. Mr. Shahid Orakzai, a free-lance journalist also partly supported the contentions of Mr. Pirzada while Mr. Ikram Chaudhry in his written submissions fully supported the contentions of Mr. Abdul Hafeez Pirzada.

21. The learned counsel for the petitioners mainly contended that in view of the law laid down by this Court in the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) Mr. Justice Sajjad Ali Shah could not be appointed as the Chief Justice of Pakistan. It is urged by the petitioners that on 5th June, 1994 when Mr. Justice Sajjad Ali Shah was appointed as the Chief Justice of Pakistan, he was at number four in the seniority list of the Judges of this Court being junior to Mr. Justice Saad Saood Jan, Mr. Justice Abdul Qadeer Chaudhry and Mr. Justice Ajmal Mian. It is further contended that Federal Government at no stage contended that there was anything against the Judges, senior to Mr. Justice Sajjad Ali Shah which disentitled them to be appointed as the Chief Justice of Pakistan. It is accordingly, argued that in the absence of any concrete or solid ground disentitling the senior most Judge to be appointed as the Chief Justice of Pakistan, the appointment of Mr. Justice Sajjad Ali Shah by superseding 3 Senior Judges was wholly unconstitutional and invalid. The petitioners contended that eversince the establishment of Supreme Court of Pakistan there has been a well-established Convention to appoint the senior most Judge in the Supreme Court as the Chief Justice of Pakistan and this convention was followed even during the period the country was placed under Martial Law and the Constitution was held in abeyance. It is further contended that the only deviation from this well-established Convention was made in the case of respondent No.2 in 1994 when he was appointed by superseding the three senior Judges of Supreme Court. However, after the decision of this Court in Al-Jehad Trust case (supra), the then Federal Government sought to rectify this Constitutional violation by seeking denotification of respondent No.2 and appointing the senior most Judge of this Court as the Chief Justice of Pakistan but on account of non-cooperative attitude of the then President of Pakistan, the efforts of the Government could not be materialized. Referring to the appointment of Mr. Justice Muhammad Munir on 29-6-1954 as the Chief Justice of Federal Court in supersession of the then Senior Judge Mr. Justice Muhammad Akram, the petitioners contended that this case was distinguishable as this deviation had taken place before the enforcement of the Constitution of 1956 and the then most senior Judge Mr. Justice Muhammad Akram had given in writing at the time of elevation of Justice Muhammad Munir, who was then the Chief Justice of High Court of Lahore, as the Chief Justice of Federal Court of Pakistan, that he had no objection to the appointment of Mr. Justice Muhammad Munir as the Chief Justice of Federal Court.

22. The learned Attorney-General of Pakistan fully supported the petitioners' contentions in the above cases. The learned counsel for the Federation also supported the petitions and contended that the appointment of Mr. Justice Sajjad Ali Shah was unconstitutional as it was made against the well established practice/convention of appointing the most senior Judge as the Chief Justice of Pakistan. The learned counsel for Federation argued that the previous Government of Benazir Bhutto refused to accept Mr. Justice Sajjad Ali Shah as the de jure Chief Justice of Pakistan after the decision of this Court in Al-Jehad Trust case (supra) while the present Government right from the day it was elected on 3rd February, 1997 refused to accept the unconstitutional appointment of Justice Sajjad Ali Shah, as the Chief Justice of Pakistan. In this connection, the counsel for Federation referred to the moves made both by the previous Government of Benazir Bhutto as well as the present Government, for removal of Mr. Justice Sajjad Ali Shah, as the Chief Justice of Pakistan, but their efforts were frustrated on account of adamant attitude of the then President of Pakistan, who was all out to defend the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan for reasons best known to him. The learned counsel for the federation vehemently argued that the appointment of Mr. Justice Sajjad Ali Shah is wholly unconstitutional and in violation of the provisions of Article 177 of the Constitution and the well-established Convention for appointment of the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.

23. Mr. S.S. Pirzada, Advocate Supreme Court and amicus curiae in these cases, in his usual lucid style, while supporting the prayers in the above petitions took us through various Conventions followed in different countries of the world while appointing the Chief Justices of the respective countries. The learned amicus referred in detail the established Convention followed in this behalf in the sub-continent in the pre-independence and post-independence period. According to learned amicus, in pre-independence period in the Chartered High Courts of the sub-continent, generally English Judges were appointed as Chief Justices. However, whenever an Indian Judge was appointed as the Chief Justice of a Court, it was strictly in accordance with the rule of seniority. Referring to the ? Convention/practice of appointing the senior most Judge as the Chief Justice of India in the post- independence period, the learned amicus pointed out that from 1947 until 1973 this practice was followed except on one occasion when the then Prime Minister of India Mr. Jawahar Lal Nehru made an attempt to appoint a junior Judge of Supreme Court Mr. Justice Mahajan as the Chief Justice of India but this effort was foiled as Justice Mahajan declined to accept the appointment. The learned amicus argued that in 1958 Sitalvads Commission was constituted in India which made recommendations for evolving a new Convention where under it may not be necessary to appoint the senior most Judge as the Chief Justice of India but the recommendations of this Commission were not followed. However, in 1973 ???? when Mrs. Indra Ghandi was the Prime Minister of India, she made a departure from the well-established Convention of appointing the senior most Judge as the Chief Justice of India, when she appointed Mr. Justice A.N. Ray as Chief Justice of India by superseding 3 senior Judges of Indian Supreme Court on 25-4-1973. This was stated to be in reaction to the decision of Indian Supreme Court in the case of Kesavananda v. State of Kerala AIR 1973 SC 1461 delivered a few days before the appointment of A.N. Ray, J. as the Chief Justice of India, wherein it was held that Indian Parliament while amending the Constitution of the country could not change its basic structure. On the appointment of Justice A.N. Ray, as the Chief Justice of India, the 3 superseded Senior Judges of Supreme Court of India resigned. A writ of quo warranto was filed to challenge the appointment of A.N. Ray, J. in the Delhi High Court but it was dismissed on the ground that as the 3 Judges Senior to Justice A.N.Ray had already resigned, Mr. Justice A.N. Raj could immediately be re-appointed as Chief Justice of India, if the writ of quo warranto is issued in the case, and therefore, no relief could be granted in the petition, The learned amicus curiae further argued that while Mrs. Indra Ghandi was still in the office of Prime Minister of India, in 1975, Emergency was declared and Fundamental Rights were suspended. The infamous case of A.D.M. Jabalpur v. S. Shukla AIR 1976 SC 1207 was decided by the Indian Supreme Court with a majority of 4 to 1. The Bench consisted of A.N.Ray, C.J. H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhangwati, JJ. H.R. Khanna, J. wrote the dissenting opinion in A.D.M. Jabalpur case. A.N.Ray retired on 28-1-1997, Khanna, J. who was the senior most Judge was bypassed and M.H. Beg, J. who was next to him, was appointed as the Chief Justice of India. Khanna, J..resigned. The reason for supersession of Khanna, J. was the annoyance of Mrs. Indra Ghandi on account of dissenting opinion of Khanna, J. in A.D.M. Jahalpur's case (supra). In the next general elections held in India in 1977-78 Mrs. Indra Ghandi was defeated and Morarji Desai became the Prime Minister of India and when Mr. Justice M.H. Beg retired as the Chief Justice of India there was great public reaction that Chandrachud and Bhagwati, JJ. be not considered for appointment as Chief Justice as they were the Judges who subscribed to the majority opinion in A.D.M. Jahalpur's case. Morarji Desai refused to yield to the public demand and said he will follow the well-established Convention and accordingly, the senior most Judge was appointed as the Chief Justice of India on the retirement of M.H.Beg, C.J. in 1978. Since then the rule of seniority has been followed consistently in India. An attempt was, however, again made by the Government of Prime Minister G.R. Gorda to bypass the most senior Judge A.R.Verma in 1996 when Mr.A.R. Ahmadi retired as the Chief Justice of India. However, this effort did not succeed.

24. Referring to the history of Convention of appointing senior most Judge as the Chief Justice of Pakistan, Mr. S.S. Pirzada contended that on 15-8-1947 when the question arose who will administer the oath of the office of the firs Governor-General of Pakistan to Quaid-e-Azam, Mr. Muhammad Ali Jinnah, there were two contestants for this occasion, namely, Justice Sir Abdur Rashid and Mr. Justice Tayabji. Sir Abdur Rashid was senior and Quaid-e-Azam nominated him for administering him the oath. When Federal Court of Pakistan was established in Pakistan on 27-6-1949. Sir Abdur Rashid, who was the senior most Judge, was nominated as its Chief Justice. The two other Judges in the Federal Court at that time were Justice A. Rehman and A.S.M. Akram. When Sir Abdur Rashid, C.J. retired on 28-6-1954 Justice Muhammad Munir, who was then the Cheif Justice of Lahore High Court was appointed as Chief Justice of Federal Court by passing the senior most Judge Mr. Justice Muhammad Akram. However, Muhammad Akram, J. had agreed in writing to the appointment of Justice Muhammad Munir as Chief Justice of Federal Court. Thereafter, the rule of seniority was followed consistently and faithfully until the appointment of Mr.Justice Sajjad Ali Shah (respondent No.2) as Chief Justice of Pakistan on 5-6-1994. The learned amicus referred to the case of Federal Government of Pakistan v. M.D. Tahir 1990 SCMR 189 wherein the appeal of Federal Government was disposed of as a result of a compromise. The learned amicus curiae contended that the rule of seniority for appointment to the Office of Chief Justice of Pakistan, was duly recognized in the compromise formula submitted before the Court in that case. To highlight his contention the learned amicus referred to the following passage from the opinion of Ajmal Mian, J. in Reference No.2 of 1996 reported as Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 80:-

"APPOINTMENT OF THE CHIEF JUSTICE OF PAKISTAN:

(1) ?????? On occurrence of a vacancy of Chief Justice of Pakistan a summary is submitted by the Law and Justice Division to the Prime Minister Submission of the summary is authorised by the Law and Justice Minister.

(2) ?????? Preference is given to the senior most Judge of the Supreme Court for appointment as Chief Justice. The senior most Judge would be superseded only in case there is anything adverse on record against him.

(3) ?????? Decision in principle would be made in the light of item 2 mutual

??????????? arrangements.

15. The above-quoted mutually agreed guiding principles indicate that modalities for the exercise of Constitutional functions by the President and as to the appointments of the Chief Justices and the Judges of the superior Courts were mutually agreed to between the then President and. the then Prime Minister which was founded on participatory consultative process and consensus-oriented. If the above mutually agreed agreement would have been adhered to by the former Prime Minister, there might not have been any occasion for rendering judgment by this Court in the Judges' Case or for the President to have made the above Reference. The above document spells out a coordinated working modality based on mutual confidence and understanding between the two high functionaries of the State, which is a must for the good governance and prosperity of the country. However, we cannot hold that in view of the above agreement, it is not necessary to answer the above Reference or to adjudicate upon the above question in the aforesaid two Constitutional petitions. Mr. Syed Sharifuddin Pirzada's submission that the above consent order in disposing of the above appeal by this Court in the case of Federation v. M.D. Tahir (supra) cannot be treated as a judgment, seems to be correct. Secondly, it is also true that since the above agreement was not brought even on the record of this Court in the aforesaid appeal, it cannot be contended that the above appeal was disposed of on the basis of the above agreement. Thirdly, the Court is under Constitutional duty to interpret the Constitutional provisions as held in the case of Union of India v. Sankalchand AIR 1977 SC 2328. In this view of the matter, Mr. Iqbal Haider's above submission is devoid of any force. However, it is for the President and the Prime Minister in power to consider, as to whether the above agreement can form a sound basis for carrying out their respective Constitutional function."

25. On the basis of the above stated historical background, the learned amicus curiae contended before us that the well-established Convention to point the senior most Judge of Supreme Court as the Chief Justice of Pakistan, me to be accepted as rule of law, and therefore, any violation of the said established Convention amounted to violation of the Constitutional provisions. i.e learned amicus further contended that the interpretation of Article 177 of the Constitution was left open by this Court while delivering the judgment in Al-Jehad's case (supra) for the reasons stated in the short order of that case However, as the controversy has now been brought before this Court, it is the qty of this Court as the final Court of interpretation of the Constitutional provisions to settle this controversy to avoid any future confusion in this behalf.

26. Mr. Abdul Hafeez Pirzada, the learned Senior Advocate Supreme Court raised the following contentions against the maintainability of the above petitions and grant of the prayers made therein:-

(i) ??????? That no question of violation of any of the Fundamental rights mentioned in Chapter I, Part II of the Constitution, muchless the Fundamental Rights of the petitioners, arises in these cases and as such the very jurisdictional foundation for entertaining these cases under Article 184(3) of the Constitution is lacking.

(ii) ?????? That the proceedings initiated under Article 184(3) of the Constitution are coram non judice as the petitions were entertained at Quetta and Peshawar Registries of the Court against the express prohibition contained in the Supreme Court Rules, 1980

(iii) ???? That the constitution of Full Court and continuation of proceedings before the 10 Members Bench of this Court are coram non judice, as neither the Full Court nor the present 10 Members' Bench was constituted/nominated by the Chief Justice of Pakistan, who alone under the law/Constitution is authroised to constitute or nominate the Benches for hearing of cases in this Court.

(iv) ????? That in terms of the orders of Quetta Bench, the Peshawar Bench and dissenting note of Mr. Justice Mamoon Kazi, the above cases are to be heard by all the Judges of this Court except Mr. Justice Sajjad Ali Shah and therefore, the present Bench consisting of only ten Judges of the Court is not competent to hear and decide these cases.

(v) ?????? That Justice Saiduzzaman Siddiqui, Justice Fazal Ilahi Khan, Justice Irshad Hasan Khan, Justice Nasir Aslarn Zahid and Justice Khalil-ur-Rehman Khan are debarred from sitting on the Bench as they unlawfully entertained the petitions under Article 184(3) of the Constitution at Peshawar and Quetta, respectively, in violation of existing orders of the Chief Justice of Pakistan to contrary, and the express prohibition contained in the Supreme Court Rules, 1980 in this behalf.

(vi) ????? That Justice Saiduzzaman Siddiqui is also debarred from presiding over the Bench as he has a direct interest in the controversy because in the event of upholding of the rule of seniority for the appointment to the Office of Chief Justice of Pakistan, he will automatically be appointed as the Chief Justice of Pakistan on the retirement of Mr. Justice Ajmal Mian in 1997. Justice Saiduzzaman Siddiqui is further debarred from sitting on the Bench as Mr. Justice Sajjad Ali Shah, in his capacity as the Chief Justice of Pakistan has made reference against him to the President of Pakistan under Article 209 of the Constitution.

(vii) That Justice Saiduzzaman Siddiqui, Justice Fazal Ilahi Khan, Justice Irshad Hasan Khan, Justice Nasir Aslam Zahid and Justice Khalil-urRehman Khan, are biased against Mr. Justice Sajjad Ali Shah and as such they cannot hear the above cases which involve a challenge to the appointment of Justice Sajjad Ali Shah as the Chief Justice of Pakistan.

(viii) That Mr. Justice Shaikh Riaz Ahmad is also disqualified to sit on the Bench as he was associated with the preparation of the summary for appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, in his capacity as the Federal Law Secretary;

(ix) ????? That in view of the bar contained in Article 199(5) of the Constitution, no writ of any kind could be issued against a Judge of the High Court or Supreme Court muchless against the Chief Justice of Pakistan and as such the proceedings filed under Article 184(3) of the Constitution against the Chief Justice of Pakistan are non est.

(x) ?????? That Justice Sajjad Ali Shah was appointed Chief Justice of Pakistan on 5-6-1994. He was at No.4 in the seniority list of the Judges of Supreme Court at that time. Neither at the time of his appointment as the Chief Justice., of Pakistan nor at any time thereafter, any of the three Judges who were senior to. Justice Sajjad Ali Shah voiced any grievance against his appointment as the Chief Justice of Pakistan, and therefore, the matter of his appointment has become a past and closed transaction which cannot be reopened now. ,

(xi) ????? That the two Hon'ble Judges who were senior to Mr. Justice Sajjad Ali Shah, continued to work under Justice Sajjad Ali Shah after 5-6-1994 until their respective retirement from this Court while the third Hon'ble Judge Mr. Justice Aj mal Mian continued to sit on various Benches presided over by Mr. Justice Sajjad Ali Shah as Chief Justice of Pakistan including the Bench which delivered the landmark ? judgment in Al-Jehad Trust case (supra), without raising any objection and therefore, no objection, could be raised now to the appointment of Justice Sxjjad Ali Shah as the Chief Justice of Pakistan.

(xii) That both Justice Saad Saood Jan and Justice Ajmal Mian were sworn as the acting Chief Justice of Pakistan during the -absence of Mr. Justice Sajjad- Ali Shah abroad on a number of occasions, thereby impliedly acquiescing into and accepting the appointment of Justice Sajjad Ali Shah as the Chief Justice of Pakistan.

(xiii)That the appointment of Mr. Justice Ajmal Mian as the Acting Chief Justice of Pakistan, is wholly without jurisdiction as Mr. Justice Sajjad Ali Shah is very much in Pakistan, and is able to perform the functions as the Chief Justice of Pakistan.

(xiv) That except Mr. Justice Ajmal Mian, Justice Saiduzzaman Siddiqui and Justice Fazal Ilahi Khan, all the remaining Judges of the Supreme Court were appointed by the President of Pakistan after consultation with Mr. Justice Sajjad Ali Shah and if the appointment of Mr. Justice Sajjad Ali Shah is struck down as unconstitutional, the appointment of all the Judges of Supreme, Court. except those mentioned above will also be rendered unconstitutional and invalid. Similarly, the appointments of large number of Judges of the four Provincial High Courts will also be rendered invalid as, they were appointed in the respective High Courts, after consultation -with Mr. Justice Sajjad Ali Shah in his capacity as the Chief Justice of Pakistan.

(xv) ???? That the rationale laid down in AI-Jehad Trust's case is not applicable to the appointment of Chief Justice of Pakistan as no consultative process is involved in the appointment of Chief Justice of Pakistan, who is appointed by the President in his sole discretion:

That the grant of relief in the nature of quo warranto is discretionary with the Court and in the circumstances of the present Cases, the relief should not be granted specially when only a period of about two and a half months remains in the retirement of Justice Sajjad Ali Shah.

(xvii) That the rule of seniority is not applicable to the appointment of Chief Justice of Pakistan as the plain language, of Article 177 of the Constitution does not admit of such an interpretation.

27. Mr. Ghulam Hussin Abbasi, the learned counsel for Mr. Justice Sajjad Ali Shah, while supplementing the above contentions of Mr. Abdul Hafeez Pirzada argued that the people were not aware of the differences, existing amongst the Judges of this Court until a meeting of Full Court was called by the Acting Chief Justice, Mr. Justice Ajmal Mian, for 13-10-1997, during the absence of Chief Justice Sajjad Ali Shah abroad. The Chief Justice on account of this development had to cut short his visit abroad and returned to Pakistan a day earlier than the date of the Full Court Meeting and can celled the Full Court Meeting. What happened thereafter is a part of history and is known to every one. Mr. Ghulam Hussain Abbasi argued that the filing of the petition at Quetta under Article 184(3) of the Constitution, to question the validity of the appointment of Mr. Justice Sajjad Ali Shah, soon thereafter is to be considered in above background and the invisible force behind the petitioner, whose antecedents are not kwon, is to be discovered to reach the truth, of the matter. Mr. Abbasi also contended that before passing the interim order restraining Mr. Justice Sajjad Ali Shah, as the Chief Justice of Pakistan, a notice in terms of Article 199(3) was mandatory and absence of such a notice vitiated the interim order. The learned counsel further contended that there being no allegation of misconduct against Mr. Justice Sajjad Ali Shah, no fault could be found with his appointment as the Chief Justice of Pakistan as he possessed the requisite qualification: The learned counsel went on to argue that no protest having been raised from the concerned quarter at the time of appointment of Justice Sajjad Ali Shah, as the Chief Justice of Pakistan the controversy became past and closed which could not be reopened again. The above petitions, in these circumstances, challenging the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, also suffer from laches.

Mr. Ahmad Raza Kasuri, the 3rd learned counsel defending Mr. Justice Sajjad All' Shah in the above cases, argued that it is misnomer to say that there is a trichotomy of power in Pakistan as the definition of State given in Article 7 of the Constitution does not include the judiciary. Judiciary according to learned counsel, therefore, is not part of the State. Regarding rule of seniority for appointment to the Office of Chief Justice of Pakistan, Mr. Kasuri contended that there is no mention of it in Article 177 of the Constitution, which alone governed the appointment of Chief Justice of Pakistan by the President. Mr. Kasuri further argued that there is no justification to read Articles 177 and 180 together as both these Articles of Constitution cater for different situations. Referring to the constitution of the present Bench Mr. Kasuri argued that this Bench was constituted under an invalid order and therefore, it could not hear these cases. Commenting on the appointment of Acting Chief Justice of Pakistan on 3-12-1997, Mr. Kasuri contended that the appointment of Acting Chief Justice of Pakistan was illegal as Mr. Justice Sajjad Ali Shah suffered from no disability, physical or mental to discharge the functions of the Chief Justice of Pakistan. Mr. Kasuri argued that existence of two Chief Justices at a time is similar to the situation created in the then Pakistan after the general elections of 1970, when Awami League led by Mujibur Rehman emerged as the majority patty in East Pakistan while the People's Party led by Mr. Zulfiqar Ali Bhutto emerged as the majority party of West Pakistan. Mr. Kasuri argued that Mr. Bhutto then put forward the theory of two Prime Ministers of Pakistan, one in the East Pakistan and the other in the West Pakistan. Mr.Kasuri read out his speech delivered on 19-2-1973 in the then National Assembly of Pakistan, to condemn the said theory of Mr. Z.A. Bhutto.

29. Mr. Shahid Orakzai, the free-lance journalist, whom we heard at his request on behalf of public at large complained that he was not given hearing during the course of proceeding of AI-Jehad Trust's case (supra), although it is mentioned in that case that he was heard. Mr. Orakazi contended that rule of seniority finds no place in Article 177 of the Constitution, which governs the appointment of Chief Justice of Pakistan by the President. Mr. Orakazi further. contended that reading of Article 209 would show that in the composition of Supreme Judicial Council the Chief Justice of Pakistan is placed at the senior most position followed by the two next most senior Judges of the Supreme Court; followed by the two senior Chief Justices of High Courts. Mr. Orakzai argued that this composition of Supreme Judicial Council clearly spells out that the seniority assigned to Chief Justice of Pakistan in the Supreme Judicial Council is not by virtue of Chief Justice being the senior most of all the Judges of the Supreme Court but by virtue of the Office of Chief Justice of Pakistan, which he holds for the time being. Mr. Orakazai argued that as Article 180 of the Constitution deals with the appointment of Acting Chief Justice of Pakistan, the criterion mentioned in this Article for appointment of Acting Chief Justice cannot be extended to Article 177 of the Constitution which deals exclusivel4 with the appointment of permanent Chief Justice of Pakistan.

30. Before dealing with the above mentioned contentions it will be appropriate to dispose of first, the application filed, under Order XXXIII, Rule 6 of Supreme Court Rules, 1980 (hereinafter to be referred as 'the Rules') on behalf of respondent No.2 praying that the above cases be heard by a Full Court consisting of all the 15 Judges of this Court. The application reads as follows:-

"(BEFORE MR. JUSTICE AJMAL MIAN, THE ACTING CHIEF JUSTICE OF PAKISTAN - FOR CONSTITUTION OF A BENCH OF FULL COURT OF 15 JUDGES IN THE HEARING OF

CONSTITUTIONAL PETITIONS 248-Q, I-P OF 1997 AND OTHERS).

APPLICATION UNDER ORDER XXXIII, RULE 6 OF THE SUPREME COURT RULES, 1980, AND ALL OTHER ENABLING PROVISIONS PRAYING FOR HEARING OF THE ABOVE MATTERS BY A FULL COURT CONSISTING OF 15 HONOURABLE JUDGES (EXCEPT MR. JUSTICE SAJJAD ALI SHAH THE CHIEF JUSTICE OF PAKISTAN AND MR. JUSTICE AJMAL MIAN THE ACTING CHIEF JUSTICE OF PAKISTAN AND SENIOR PUISNE JUDGE).

Humbly Sheweth:

(1) ?????? That a Constitutional Petition 248-Q of 1997 challenging inter alia the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan was filed at Quetta Registry and entertained by a Division Bench of this august Court consisting of Mr. Justice Irshad Hassn Khan and Mr. Justice Khalil -ur-Rehman Khan.

(2) ?????? That on 26-11-1997, the aforesaid Division Bench was pleased to admit the petition to regular hearing and issue an ex parte ad interim Order suspending the notification of the appointment of the Chief Justice and consequently restrained him from performing judicial and administrative functions and exercising powers of the Chief Justice of Pakistan.

(3) ?????? That on 27-11-1997, another Division Bench of this honourable Court consisting of Mr. Justice Saiduzzaman Siddiqui and Mr. Justice Fazal Ilahi Khan sitting at Peshawar was pleased to entertain Constitutional Petition I-P of 1997 and direct the Registrar of this Court to place all the cases for consideration before the Senior Puisne Judge Mr. Justice Ajmal Mian, and obtain orders from him accordingly. It was also observed that it would be appropriate that the matter along with other similar matters be placed before the Full Court consisting of all the Judges of the Supreme Court except honourable Chief Justice of Pakistan.

(4) ?????? That the matter was placed before the learned Senior Puisne Judge at Karachi who declined to pass any orders on the ground that he did not want to be a Judge in his own cause. Thereafter the Bench at Peshawar, while directing that the matter be placed before the Full Court minus the Chief Justice, and the Senior Puisne Judge, authorised the next senior Judge Mr. Justice Saiduzzaman Siddiqui to pass necessary administrative orders in exercise of the powers vesting in the Chief Justice of Pakistan.

(5) ?????? That on 28-11-1997 a Bench of three learned Judges sitting at Quetta while extending the restraint Order against the Chief Justice directed that the matter be placed before the Full Court minus honourable the Chief Justice, as soon as the Bench of Full Court was formed.

(6) ?????? That on 27-11-1997 Mr. Justice Mamoon Kazi of this honourable Court through a dissenting Order at Islamabad also desired that the matter be heard by the Full Court.

(7) ?????? That Mr. Justice Saiduzzaman Siddiqui fixed the hearing of the above petitions at Islamabad before the Full Court minus Honourable the Chief Justice Sajjad Ali Shah and the Senior Puisne Judge Mr. Justice Ajmal Mian. However, on that date because there were two rosters and two cause lists--one issued by the honourable Chief Justice and the other by Mr. Justice Saiduzzaman Siddiqui, different Benches sat in Islamabad and only 10 learned Judges sat on the Bench presided over by Mr. Justice Saiduzzaman Siddiqui.

(8) ?????? That on 2-12-1997 this Bench issued directions to the Federal Government and the President of Pakistan to make an immediate order under Article 180 of the Constitution appointing the Senior Puisne Judge Mr. Justice Ajmal Mian as Acting Chief Justice of Pakistan. In the meantime it was also ordered that Mr.Justice Ajmal Mian would discharge administrative as well as judicial functions of Chief Justice including the constitution of the Benches until formal appointment of the Acting Chief Justice was made by the Government.

(9) That thereafter a Bench consisting of 10 learned Judges has taken up the hearing of the above petitions which is continuing.

(10) That five learned Judges, namely, Mr. Justice Mukhtar Ahmad Junejo, Mr. Justice Bashir Jehangiri, Mr. Justice Mamoon Kazi, Mr. Justice Ch. Muhammad Arif and Mr. Justice Munir A. Sheikh, have not been included in the Bench.

(11) That on 4-12-1997 honourable the Chief Justice instructed the undersigned senior counsel to represent him in the above petitions and enter appearance on his behalf.

(12) That on 5-12-1997 the undersigned counsel appeared before the Bench of 10 learned Judges and was required to submit a written reply. Thereafter, the case was adjourned for hearing to 10-12-1997. On that date a written reply was submitted on behalf of the Chief Justice and the undersigned counsel is in the midst of his submissions to the Court.

The first submission was that tinder the two judicial Orders passed at Quetta and Peshawar supplemented by the observations of Mr. Justice Mamoon Kazi and the administrative Order passed by Mr. Justice Saiduzzaman Siddiqui, exercising the powers of the Chief Justice of Pakistan, these matters were required to be heard by a Bench of all the remaining 15 Judges i.e. minus the Chief Justice and the Acting Chief Justice, and that in any case it was just, fair and proper that the five learned Judges mentioned here in above who were not on the Bench should be requested to sit and hear the above matters along with their other brother Judges.

(13) That on 12-12-1997, on the conclusion of the submissions for the day, an oral request for enlargement of the Bench, to enable all the learned. 15 Judges to sit, was repeated to the Bench. It was observed by the Presiding Judge Mr. Justice Saiduzzaman Siddiqui that he had constituted a Bench of all the 15 Judges but five of the learned Judges had refused to sit and, therefore, he had no means to compel them to sit on the Bench.

(14) That with utmost respect it is submitted that the five learned Judges could not sit on the Bench on 1st and 2nd December, 1997, as the honourable Chief Justice was present in the Court and two rosters and two cause lists were being issued. In such a situation, with utmost respect, it cannot be said that the five learned Judges refused to sit on 'the Bench.

(15) That in view of the aforesaid it will be appropriate and proper that the Bench is enlarged and reconstituted and the matters heard by all the 15 Judges. Nothing could be more important to the Court than its own constitution and functioning.

There are several precedents and examples when initially matters have been heard by smaller Benches and reheard by larger Benches in view of the importance of such matters.

(16) That in accordance with the practice of this Honourable Court this application is being simultaneously submitted to the Bench hearing the cases and also before the Honourable Acting Chief Justice for appropriate orders.

It is, therefore, prayed accordingly."

31. The enlargement of the present Bench by including the remaining five Hon'ble Judges of this Court is sought on the ground that under the orders passed by the Quetta Bench and Peshawar Bench of this Court, the above cases were to be heard by the Full Court minus the Hon'ble Chief Justice of Pakistan, who is impleaded as a respondent in these cases. It is also stated that Mr. Justice Mamoon Kazi too in his dissenting note recorded in Constitutional Petition No.248-Q of 1997 had suggested that the cases be heard by all the Judges of this Court. This application was addressed to the Hon'ble Acting Chief Justice while a copy thereof was submitted before us on 15-12-1997. As this application was addressed to Hon'ble Acting Chief Justice of Pakistan, we deferred consideration of this application until it was considered and disposed by the Hon'ble Acting Chief Justice of Pakistan. The Hon'ble Acting Chief Justice of Pakistan on 17-12-1997 passed orders on the above application directing the office to place this application before us for consideration.

32. The orders passed by a Bench of this Court at Peshawar in Constitution Petition No. l-P of 1997 required the above cases to be heard by the Full Court except Hon'ble Chief Justice, who was cited as a respondent in these cases. In pursuance of the orders of Peshawar Bench a request was made to the than Senior Puisne Judge, Mr. Justice Ajmal Mian, to constitute the Full Court for hearing of these cases. The Hon'hle Senior Puisne Judge, however, declined to constitute Full Court or to sit as a member of Full Court on the ground that he had personal interest in these cases. In these circumstances, the Bench at Peshawar directed that the matter be placed before the next senior Judge for constitution of the Full Court for hearing of these cases. It was in pursuance of this direction of the Bench at Peshawar, that a Full Court consisting of 1 c Judges was constituted to hear the above cases at the Principal Seat of this Court on 1-12-1997. When the Full Court assembled at Islamabad on 1-12-1997 Mr. Justice Mukhtar Ahmad Jimeio. who had earlier declined to sit on the Bench which heard and admitted Constitutional Petition No.l-P of 1997 at Peshawar not only declined to be a Member of the Full Court but proceeded on leave up to 23-12-1997. The remaining 4 Hon'ble Judges namely, Mr. Justice Muhammad Bashir Jehangiri, Mr. Justice Mamoon Kazi, Mr. Justice Ch. Muhammad Arif and Mr. Justice Munir A. Sheikh too declined to sit as Members of the Full Court. In these circumstances, the Full Court consisting of only 10 Judges of this Court, started hearing of above cases on 2-12-1997. We may mention here that a Full Court hearing does not necessarily require presence of all the Judges of the Court on the Bench. It some of the Judges of the Court are not available or-decline to sit on Bench, for some reason, the remaining Judges of the Court -would constitute the quorum of the Full Court. In the present cases, as earlier pointed out by us, the Hon'ble Chief Justice could not sit on the Bench as he himself was a respondent in these petitions. The next senior Puisne Judge, Mr Justice Ajmal Mian (as he then was) declined to sit on the Bench as he had personal interest in these cases. Out of the remaining 5 Judges, Mr. Justice Mukhtar Ahmad Junejo not only declined to sit on the Full Court Bench by proceeded on leave. The remaining 4 learned Judges of this Court opted not to sit on the Full Court Session In these circumstances, the remaining 10 Judges of this Court properly constituted the quorum for the Full Court. We may also point out that the hearing of the above cases started on 2-12-1997 and it continued from day to day. Mr. Abdul Hafeez Pirzada appeared in the Court, for the first time on behalf of respondent No.2, on 5-12-1997 and made a request that he may be allowed' time to file reply on behalf of respondent No.2. His request was granted and accordingly, the cases were adjourned to 10-12-1997.

Mr. Abdul Hafeez Pirzada after filing the reply on behalf of respondent No.2. commenced his arguments on 10-12-1997. No doubt, during the course of his arguments, Mr. Abdul Hafeez Pirzada did arise a contention that this Bench was not property constituted in view of the orders passed by the Quetta and Peshawar Benches, which directed hearing of these cases by all the Judges of this Court but this argument could not be treated as an unqualified request for enlargement of the Bench. The formal request for inclusion of the remaining five Judges of this Court on the Bench was made only on 15-12-1997 when Mr. Abdul Hafeez Pirzada filed before us the copy of the application filed under Order XXXIII, Rule 6 of the Rules before the then Acting Chief Justice, requesting for enlargement of the Bench. On 15-12-1997, when Mr. Abdul Hafeez Pirzada filed the above application for reconstitution/enlargement of the Bench, the petitioners had already concluded their arguments in these cases and so also the learned Attorney-General and the learned amicus curiae. Even Mr. Abdul Hafeez Pirzada had argued these cases for 5 days. It is a well-established practice K that a Judge having once declined to hear a case could not be asked to hear that case- In these circumstances, both for the reason that the remaining Hon'ble Judges having declined in the first instance, to sit on the Full Court Session to hear these cases could not be included on the Bench on the rule of propriety specially when the request for their inclusion on the Bench was made by a party to the proceedings, as well as for the reason that the above application was made when the arguments in these cases were about to be concluded, we were not inclined to grant this application. Accordingly, after hearing the arguments of the learned counsel on 23-12-1997, we rejected this application.

33. Another argument raised by Mr. Abdul Hafeez Pirzada regarding the competency of this Bench to hear these cases is that the constitution of the present Bench by one of us (Justice Saiduzzaman Siddiqui) was wholly illegal and unconstitutional, as formation of Benches of the Court to hear cases is the sole prerogative of the Chief Justice of Pakistan. The learned counsel, accordingly. contended that the present Bench having not been constituted by respondent No- 2: the entire proceedings before this Bench are coram non iudice. ???

34. No doubt the function of constitution of Benches of this Court to hear the cases, is the prerogative of the Chief Justice of Pakistan (C.J.; and this is also provided in Rule 1 of Order XI of the Rules which reads as follows:-

"Save as otherwise provided by law or by these rules every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice:

Provided that the petitions for leave to appeal, other than those directed against acquittal, and appeals from appellate or revisional judgments and orders made by a Single Judge in the High Court, may be heard and disposed of by a Bench of two Judges, buy the Chief Justice may, in a fit case, refer any cause or appeal as aforesaid to a larger Bench:

Provided further that if the Judges hearing a petition or an appeal are equally divided in opinion, the petition or appeal, as the case may be. shall, in the discretion of the Chief Justice, be placed for hearing and disposal either before another Judge o.- before larger Bench to be nominated by the Chief Justice."

35. However, the above function of the Chief Justice is to be performed in the event of the vacancy in the office of Chief Justice or in his absence or inability to perform the function of his office due to any cause, by the Acting I Chief Justice of Pakistan (A.CJP) to be appointed by the President under Article 180 of the Constitution. As the appointment of an Acting Chief Justice of Pakistan sometimes is delayed or it may in normal course take some time for a variety of reasons, in order to maintain the continuity and smooth working of the Court, the above functions of the Chief Justice of Pakistan are to be performed during this interregnum by the next senior Judge of the Court and failing him by the next senior Judge available in order of seniority.

36. 1n the present case, the Hon'ble Chief Justice was restrained from performing any judicial or administrative functions under the order of a Bench of this Court functioning at Quetta in Constitutional Petition 248-Q of 1997 on 26-11-1997. A summary moved by the Federal Government for appointment of Acting Chief Justice of Pakistan in the circumstances, did not meet the approval of President of Pakistan, on account of a different perception of the legal position. The Peshawar Bench of this Court when heard Constitutional Petition No. l-P of 1997 on 27-11-1997 and reached the conclusion that these cases should be heard by the Full Court minus the Hon'ble Chief Justice of Pakistan, who was a respondent in these cases, was conscious of the prevailing situation. Accordingly, the Peshawar Bench directed the Registrar of this Court, in the circumstances to obtain orders for constitution of the Full Court from the Senior Puisne Judge, who was then working at Karachi Registry. The learned Senior Puisne Judge however, declined to perform the function of constituting the Full Court for personal reason, and therefore, the Peshawar Bench on reconsideration of the matter directed the next senior Judge of this Court in order of seniority to perform the function of constitution of Full Court. It was in this background that one of us (Justice Saiduzzaman Siddiqui) who was the next senior Judge of this Court in order of seniority constituted the Full Court for hearing of these cases. It is therefore, quite clear to us to that the assumption of the function by one of us (Justice Saiduzzaman Siddiqui) to constitute the Full Court in the above stated circumstances, was not only perfectly legal and valid but was also necessary to' give effect to the orders passed by the Peshawar Bench, in Constitutional Petition No.l-P of 1997 on 27-11-1997 and 28-11-1997. We, therefore, find no substance in the contention of learned counsel for respondent No-2 that the constitution of Full Court in the above stated background by one of us (Justice Saiduzzaman Siddiqui) to hear the above cases suffered from any illegality or unconstitutionality.

37. The next preliminary objection raised on behalf of respondent No-2 to the competency of these proceedings is, that under the Supreme Court Rules, 1980, a petition for enforcement of Fundamental Rights is to be filed only at the Principal Seat and not at the Branch Registries of this Court. Reliance in this connection is placed on an Office Order No.F.Reg.l/81 SCJ, dated 19-11-1981. The following note appears under Order XXV of the Rules:-

"Original jurisdiction.--Any application or petition falling under this . Order may be filed and registered only in the Main Registry at Rawalpindi.

Article 184(3) of the Constitution of Islamic Republic of Pakistan deals with the original jurisdiction of the Supreme Court to pass orders in the nature of writ. It provides that 'without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have power to make an order of the nature mentioned in the said Article'. "

In the notes appended to Order I of the Rules, the instructions contained in the Office Order dated 19-11-1981 are reproduced as follows:-

The relevant instructions issued from time to time for institution of cases at the Branch Registries and at the Main Registry are reproduced hereunder:

It was notified in 1980 that: . "since the shifting of the seat of the Supreme Court from Lahore to Rawalpindi and the opening of the Branch Registries at the seats of the High Courts, including Quetta petitions/appeals/miscellaneous applications arising out of Judgments and Orders of the various High Courts, or Service Tribunals can be instituted either at the Main Seat of the Court at Rawalpindi or at the Branch Registries concerned of the Court established at the respective Provincial Capitals."

The instructions were, however, amended in 1981 and it was notified that petitions, appeals and miscellaneous applications etc. arising out of the judgments and orders of the High Courts, Federal Service Tribunals and Federal Shariat Court can be instituted as follows:-

(i) MAIN REGISTRY, RAWALPINDI:

Against the judgments and orders of--

(a) all the High Courts;

(b) the Rawalpindi Bench, Lahore High Court

(c) the Federal Shariat Court of Pakistan, Islamabad, Lahore, Karachi, Peshawar and Quetta.

(d) the Federal Service Tribunal, Islamabad, Lahore, Karachi, Peshawar and Quetta; and

(e) all the Provincial Service Tribunals.

(ii) LAHORE BRANCH REGISTRY:

Against the judgments and orders of--

(a) the Lahore High Court excluding those of the Rawalpindi Bench

(b) the Federal Shariat Court passed at Lahore;

(c) the Federal Service Tribunal passed at Lahore; and

(d) the Punjab Service Tribunal.

(iii) KARACHI BRANCH REGISTRY:

Against the judgments and orders of---

(a) the Sindh High Court;

(b) the Federal Shariat Court, passed at Karachi;

(c) the Federal Service Tribunal, passed at Karachi; and

(d) the Sindh Service Tribunal.

(iv) PESHAWAR BRANCH REGISTRY

Against the judgments and orders of---

(a) the Peshawar High Court;

(b) the Federal Shariat Court, passed at Peshawar;

(c) the Federal Service Tribunal, passed at Peshawar; and

(d) the N.-W.F.P. Service Tribunal.

(v) QUETTA BRANCH REGISTRY:

Against the judgments and orders of---

(a) the Balochistan High Court;

(b) the Federal Shariat Court, passed at Quetta;

Asad Ali v. Federation of Pakistan .

??????????? (Saiduzzaman Siddiqui, J)

(c) the Federal Service Tribunal, passed at Quetta; and

(d) the Balochistan Service Tribunal,

(vi) All appeals arising out of Federal Shariat Court of Pakistan can only be registered at the main Registry.

Reference is also made, in support of the preliminary objections, to the Rule 6 of Order XXV of the Rules which reads as follows:-

'6. An application for the enforcement of any other fundamental right shall be filed in the Registry. It shall set out the name and description of the application, the relief sought, and the grounds on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on, and at least eight copies of the said application and affidavit shall be lodged in the registry. It shall also state whether the applicant has moved the High Court concerned for the same relief and, if so, with what result. The application shall be made by notice of motion, but the Registrar may in appropriate cases put up the application before the Court for orders as to the issue of notice'."

38. A careful reading of the above Office Order and the Rules will show that there is no prohibition as such from filing of a petition on the original side at the Branch Registries. Even otherwise, the Supreme Court Rules have been framed under Article 191 of the Constitution for the purposes of regulating the procedure applicable toarious proceedings initiated or filed in the Supreme Court. these Rules cannot affect or take away the jurisdiction conferred on this Court by the Constitution. It is now well-established that the Rules of Procedure are subservient to the cause of justice and they cannot be interpreted in a manner so as to whittle down the proceedings or to frustrate the ends of justice. The jurisdiction to entertain the proceedings on the original side of this Court is conferred under Article 184(3) of the Constitution. The jurisdiction of the Supreme Court extends to the whole of Pakistan and is not confined to a particular place. The interpretation of the Rules framed for the purposes of regulating the proceedings before this Court in a manner so as to restrict the exercise of jurisdiction conferred on this Court by the Constitution only through proceedings filed at the Principal Seat, is a negation of the clear provisions of Article 184(3) of the Constitution which places no such embargo on the exercise '', of power by this Court in a matter which is of a public importance and involves' the question of enforcement of the Fundamental Rights conferred by Chapter 1, Part II of the Constitution. The suggested interpretation of Rules 1 and 6 of Order XXV of the Rules is also against the spirit of the Rules, as would appear from Rules 1, 4, 6 and 7 of Order XXXIII of the Rules, which read as follows:-

"1. The Court or any Judge or Judges thereof may for sufficient cause shown, excuse the parties from compliance with any of the requirements of these Rules, and may give such directions in matter of practice and procedure as it shall consider just and expedient.

4. The court may at any time, either of its own motion or on the application of any party, make such orders as may be necessary or reasonable in respect of any of the matters mentioned in these Rules, may issue summons to persons whose attendance is required either to given evidence or to produce documents, or order any fact to be proved by affidavit.

6. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

7. Where at any stage of the proceedings in the Court, there has been a failure to comply with these Rules, the failure shall be treated as an irregularity and shall not nullify the proceedings or the judgment. The Court may, on such terms as to costs or otherwise, as it thinks just, set aside either wholly or in part the proceedings in which such failure has occurred."

39. A reading of the above Rules will show that the Court or a Judge of this Court, for sufficient cause shown, may excuse the compliance of any of the requirements of the Rules and give such direction as may be considered just and expedient. Rule 4 of the Rules clearly provides that the Court may at any time either of its own motion or on an application of any party may pass such orders as may be necessary in respect of any matters mentioned in the Rules and may also issue summons to the persons whose attendance is required to give evidence or produce documents or order for proving a fact by affidavit. Rule 6 provides that the Rules will not have the effect of limiting or otherwise affect the inherent powers of the Court to make any order which may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Rule 7 makes it clear that failure to follow the Rules shall be treated as an irregularity and shall not nullify the proceedings or a judgment. In the case of Province of Punjab v. Abdul Majid and others (1997 SCMR 1692), this Court while considering the scope of Order XLI, Rule 33, C.P.C. with reference to the contention that relief could not be granted to a party which omitted to file appeal or prefer cross objection to the appeal, held as follows:-

"7. The Code of Civil Procedure, 1908 (hereinafter to be referred as 'the Code' only) was enacted to regulate the proceedings before the Civil Courts. The provisions contained in the Code are mainly rules of procedure. It is well-established that all procedural laws are subservient to the cause of justice and therefore, such laws neither limit nor control the power of the Courts to pass an order or decree which is necessary to do full justice in the facts and circumstances of the case. Interpretation of procedural law in a manner, it tends to obstruct the course of justice has to be avoided as far as possible. The framers of the Code were also alive to the above stated underlying object of procedural law, and perhaps for this reason and to remove and dispel all doubts in this regard unequivocally provided in section 151 of the Code that 'Nothing in this Code shall be. deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. "

40. Similarly, in the case of Salima Begum v. Sardaran Bibi (PLD 1995 SC 40) this Court while examining the effect of non-compliance of the provisions of Order VII, Rule 1 of the Code of Civil Procedure, on the right of the defaulting party, observed as follows:-

"It is true that Order 7, Rule 1, C.P.C. specifically provides that the plaint shall contain the name of the Court in which the suit is preferred, the name and description of residence of plaintiff and name and description of defendant so far they may be ascertained, and where plaintiff or defendant is a minor or the person of unsound mind, a statement to that effect must also appear in the plaint. Besides these preliminaries, the plaint must also contain the facts constituting cause of action and when it arose, the fact showing that the Court has jurisdiction in the case, the relief which the plaintiff claimed, a statement about valuation of the suit for purposes of court-fee and jurisdiction and where the plaintiff allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished. From the above provisions, it is quite clear that while examining the noncompliance of the provisions of Order VII, Rule 1, C.P.C., the Court is to consider the contents of the plaint in the suit as a whole. It may be mentioned here, that no consequences are provided for non-compliance of the provisions of Order VII, Rule 1, C.P C. It is well-settled that all rules of procedure are meant to promote the cause of justice and therefore, they cannot be allowed to be used as an engine of oppression against a party to the suit. The Courts do not favour non-suiting of parties on mere technicalities and always prefer decision on merits."

We are, therefore, of the view that firstly, the provisions of Order XXV of the Rules do not provide any prohibition against filing of petition under Article 184(3) of the Constitution at the Registries of the Court functioning at Lahore, Karachi, Peshawar and Quetta. Secondly, the administrative order of Hon'ble Chief Justice, dated 19-11-1981 providing that petitions relating to original jurisdiction of this Court may be filed and registered only in the main Registry at Rawalpindi could not render the proceedings , entertained in contravention of the said administrative direction of the Hon'ble Chief Justice by a Judge or a Bench functioning at Lahore, Karachi, Peshawar and Quetta, as coram non judice. Such contravention is to be considered only as an irregularity which does not nullify the proceedings or affect the validity of the judgment delivered in such proceedings in terms of Rule 7 of Order XXXIII of the Rules. And lastly, a Judge or a Bench of this Court in its discretion may dispense with the compliance of any of the rules contained in the Rules if the circumstances of the case so warranted, and when the relevant Rule is relaxed or its compliance is excused the proceedings entertained in relaxation of Rule cannot be challenged on the ground that it was entertained in the contravention of the Rules.

41. It is, therefore, quite clear that the entertainment of petitions under Article 184(3) of the Constitution by the two Benches of this Court while functioning at Quetta and Peshawar respectively, was perfectly legal and within the competence of these Benches and as such the proceedings taken and orders passed thereon did not suffer from any patent or latent lack of jurisdiction. The objection raised on behalf of respondent No. 2 that the proceedings taken and orders passed on Petitions Nos.248-Q of 1997 and 1-P of 1997, by the Quetta and Peshawar Benches respectively, of this Court were coram non judice, as these petitions were entertained in contravention of the provisions of Order XXV of the Rules, consequently fails. Mr. Abdul Hafeez Pirzada very vehemently argued that the order passed by the Quetta Bench on 26-11-1997 was stayed by the Hon'ble Chief Justice the same day and the order passed by Hon'ble Chief Justice staying the Quetta Bench order was later reaffirmed by a five-member Bench functioning at Islamabad on 27-11-1997 by a majority of 4 to 1, and therefore, all proceedings taken after 26-11-1997 were coram non judice. The contention of Mr. Abdul Hafeez Pirzada has not impressed us.

42. The operative part of the order passed by Quetta Bench in Constitutional Petition No.248-Q of 1997 after hearing the counsel for the petitioner and Deputy Attorney-General, who was present in Court at that time, on 26-11-1997, reads as under:-

"8. The contentions raised in the petition are of paramount public importance. In the circumstances, we deem it fit and proper to admit the petition to a regular hearing. Notice to the respondents for 28-11-1997.

9. Issue notice to the learned Attorney-General for Pakistan as contemplated under Order XXVII, Rule 1, C.P.C., for the said date, as the matter involves interpretation of the provisions of the Constitution. As Mr. Anwarul Haq, the learned Deputy Attorney-General is present in the Court, in connection with the hearing of another case, he accepts notice on behalf of the learned Attorney-General. A copy of the Constitutional petition as well as application for interim relief has been supplied to the learned Deputy Attorney-General. He is directed to forward the same to the respondents as well as to the learned Attorney General who An turn is directed to obtain instructions from the respondents and appear before this Court on the said date to present the point of view/stance of the respondents.

(9) & (10). Notice be issued in the application for interim relief. Meanwhile, operation of the Notification, dated 5th June, 1994 issued by respondent No. 3, in pursuance of Article 177 of the Constitution, appointing respondent No. 2 as Chief Justice of Pakistan is held in abeyance until further orders and subject to notice for 28-11-1997. Resultantly, respondent No. 2 shall cease to perform judicial and administrative functions and powers of the Chief Justice of Pakistan till further orders subject to notice for the aforesaid date.

11. It may be pointed out that the learned Deputy Attorney-General opposed the passing of any interim relief at this stage on the ground that it would render the working of the Supreme Court to a standstill. The contention is devoid of any force. Mr. Muhammad Aslam Chishti has rightly pointed out that in view of the law laid down in the case of Mr. Zulfiqar Ali--Appellant v. The State--Respondent (PLD 1978 SC 40), the constitution and continuity of the Supreme Court would not be affected by a temporary vacancy in the Office of Chief Justice of Pakistan in consequence of interim relief granted in these proceedings. "

43. We have already reproduced earlier in this judgment in extenso the order passed by respondent No. 2 on 26-11-1997 staying the above order of Quetta Bench. After reading both the orders, we are in no doubt that order passed by respondent No. 2 was a nullity in the eyes of law. Firstly, the order passed by the Quetta Bench was a regular judicial order passed on a petition presented by a private individual under Article 184(3) of the Constitution, after hearing the counsel of the petitioners and Deputy Attorney-General. This order could only be varied or set aside in review as provided in Order XXVI of the Rules. No other proceedings against the order dated 26-11-1997 were competent. Secondly, the order passed by respondent No. 2 on 26-11-1997 in the evening was an administrative order which could not have the effect of suspending the judicial order passed by a Bench of this Court. Thirdly, the order dated 26-11-1997 was passed by the Quetta Bench on a petition wherein the validity of the appointment of respondent No. 2 was challenged and he was also arrayed in the petition as a respondent. Therefore, respondent No. 2 himself could not pass any order in relation to those proceedings. Fourthly, the interim order passed by the Quetta Bench on 26-11-1997, suspended the Notification dated 5-6-1994 where under respondent No. 2 was appointed as the Chief Justice of Pakistan. This interim order had the effect of restraining respondent No. 2 from performing any judicial or administrative function. Therefore, until the above interim order passed by Quetta Bench was vacated or set aside in review, the respondent could not pass any order either on the judicial or administrative side. The order dated 26-11-1997 passed by respondent No. 2 on the administrative side was, therefore, rightly ignored by the learned Bench at Quetta when it was conveyed to them at night on 26-11-1997.

44. Mr. Abdul Hafeez Pirzada's further contention in this behalf is that in any case the order dated 26-11-1997 was later suspended by a Bench of five Judges working at the Principal Seat by a majority of 4 to 1 and, therefore, even if the order passed by respondent No. 2 on 26-11-1997 is ignored, the order dated 27-11-1997 held the field, and therefore, no further proceedings in the case could take place at Quetta on 28-11-1997 or thereafter, at Islamabad. The argument of learned counsel once again, overlooks the fact that the order dated 26-11-1997 passed by the Quetta Bench could only be varied or set aside in review in accordance with the provisions of Order XXVI of the Rules. Rule 1 of Order XXVI of the Rules provides that the order passed by this Court in civil proceedings could be reviewed on grounds similar to those mentioned in Order LXVII, Rule 1, C.P.C. The application for review is to be accompanied by the certified copy of the order sought to be reviewed and is to be drawn by the same Advocate, who appeared at the hearing of the case (Rules 3 and 6 of Order XXVI). The application for review as far as practicable is to be posted for hearing before the same Bench which passed the order (Rule 8 of Order XXVI). From the order passed by the five-member Bench of this Court at the Principal Seat by majority of 4 to 1 on 27-11-1997, it is quite clear that there were no proceedings before the Court in the nature of review against the order of Quetta Bench dated 26-11-1997. Even the order dated 26-11-1997 passed by the Quetta Bench was not before the Court when they passed the order on 27-11-1997. The order passed by the five-member Bench at the principal seat at Islamabad on 27-11-1997 was a mere affirmation of the order of respondent No. 2 passed on 26-11-1997 on the administrative side. As rightly pointed out by Mamoon Kazi, J. in the minority opinion dated 27-11-1997, the orders passed by this Court are not appeal able and only a review was competent against such orders. It was also rightly observed by Mamoon Kazi, J. in his minority opinion, that presence of respondent No. 2 on the Bench was not proper. Respondent No. 2 himself being a respondent in the case wherein Quetta Bench had passed the order dated 26-11-1997, he could not preside over the Bench which was considering the validity of the order dated 26-I 1-1997. Another important aspect of the case which Mr. Pirzada, the learned counsel for respondent No. 2, overlooked while pressing into service the order dated 27-11-1997 passed by the five-member Bench of this Court at Islamabad, was, that the Quetta Bench had adjourned the hearing of Constitutional Petition. No.248-Q of 1997 to 28-11-1997 after passing the order dated 26-11-1997, with notice to all the parties to the proceedings. The case, therefore, could not be taken up at Islamabad on 27-11-1997 without ante-dating the hearing of the case. Similarly, the petitioner was also entitled to a notice and hearing if the case was ante-dated and was to be heard at Islamabad, instead of Quetta. The order dated 27-11-1997 passed by the five-member Bench at Islamabad, does not show presence of any party or Advocate, at the time it was taken up by the learned Bench. It also does not speak of any hearing having taken place before the order was passed. The order dated 27-11-1997 passed by the learned five-member Bench at Islamabad, therefore, does not possess any attribute of a judicial order and was rightly considered by the Quetta Bench as an administrative order which merely confirmed the earlier administrative order of respondent No. 2. Apart from it, it is quite clear from the order passed by the five-member Bench at Islamabad that they were dealing with the order passed by the Bench which consisted of Irshad Hasan Khan and Khalil-ur-Rehman Khan, JJ. on 26-11-1997 in the morning. The five-member Bench while passing the order dated 27-11-1997, was not even conscious that another order was passed by the Bench at Quetta late in the night of 26-11-1997 reaffirming the earlier order of Quetta Bench, which consisted of Irshad Hasan Khan, Nasir Aslam Zahid and Khalil -ur-Rehman Khan, JJ Therefore, the order dated 27-11-1997 could not have the effect of suspending the order of the three-member Bench of Quetta. In addition to it, the hearing of the above cases at Islamabad by the Full Court was ordered by the Bench of this Court functioning at Peshawar in Constitutional Petition No. l-P of 1997 on 27-11-1997. This order of Peshawar Bench was never suspended, varied or set aside in any proceedings. We, therefore, hold that order dated 26-11-1997 passed by respondent No. 2 on the administrative side could not have the effect of suspending the judicial order passed by the Quetta Bench in Constitutional Petition No.248-Q of 1997 on 26-11-1997. The respondent No.2 otherwise could not pass any order staying the order of Quetta Bench in Constitutional Petition No.248-Q of 1997, as respondent No. 2 was himself a respondent in that case. The order passed by the learned five member Bench at Islamabad in Constitutional Petition No.248-Q of 1997 was vitiated on account of presence of respondent No.2 as the head of the Bench, who was respondent in Constitutional Petition No.248-Q of 1997. The order passed by Quetta Bench in Constitutional Petition No.248-Q of 1997 on 26-11-1997, not being appeal able, could only be set aside or varied through review proceedings as provided in Order XXVI of the Rules. There being no proceedings by way of review under Order XXVI of the Rules before the learned five-member Bench, the order passed by the learned Bench on 27-11-1997 could not be treated as a judicial order. The order passed by the learned five-member Bench at Islamabad on 27-11-1997 even otherwise bore to semblance of a judicial order, as neither the hearing of Constitutional Petition No.248-Q of 1997, which was fixed by the Quetta Bench on 28-11-1997 was ante-dated, nor the petitioner or his counsel was notified of the change in the date and venue of hearing. The order dated 27-11-1997 having been passed ? by the learned five-member Bench at Islamabad without issuing any notice to the affected parties and without hearing them, could at best be treated as an administrative order in affirmation of the earlier administrative order of respondent No.2, which could not suspend the judicial order passed by Quetta Bench. We, accordingly, overrule the objection of Mr. Abdul Hafeez Pirzada.

45. Mr. Abdul Hafeez Pirzada, the learned Senior Advocate Supreme Court for respondent No. 2, next contended that before a case is accepted for adjudication by this Court under Article 184(3) of the Constitution, two jurisdictional requirements must be satisfied. Firstly, it must be shown that the question raised in the petition is one of public importance and, secondly, the reliefs claimed in the case are relatable to the enforcement of a fundamental right guaranteed by Chapter 1, Part II of the Constitution. The learned counsel contended that if any of the above mentioned two jurisdictional facts are missing in a case, this Court cannot take up the same in exercise of its power under Article 184(3) of the Constitution. The learned counsel further contended that while examining the question of enforcement of a fundamental right in a petition under Article 184(3) of the Constitution, the Court must record a positive finding as to the violation of the specific fundamental right mentioned in Chapter 1 Part II of the Constitution in order to assume jurisdiction in the case. To support his contention, Mr. Pirzada specifically relied on the following observation in Yellow Cabs' case reported as Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621) decided by a Bench of this Court consisting of Nasim Hasan Shah, C.J., Abdul Qadeer Chaudhry, Ajmal Mian, Saiduzzaman Siddiqui and Wali Muhammad, JJ.:-

"After hearing the learned counsel for the parties at length, we are of the view that the reliefs claimed by the petitioners in the above cases can be divided in two distinct and separate categories. The first category comprises of those reliefs which the petitioners have asked against the Government and the banks on the basis of the rights which they claim to have acquired as a result of the representation made to them in the form of Yellow Cab Scheme and on which they acted in good faith. In this category the relief claimed by the petitioners against the banks to compel them to contribute 90 per cent. of loan component promised under the Yellow Cab Scheme would fall. Similarly, the relief sought by the petitioners against the Federal Government that on account of its representation in the form of Yellow Cab Scheme the petitioners changed their position, and thus, acquired a vested right for import of vehicles in accordance with the provisions of Yellow Cab Scheme will also fall in this first category. The grant of these reliefs to the petitioners do not require enforcement of any of the Fundamental Rights mentioned in Chapter 1 of Part II of the Constitution and as such to the extent of these reliefs the above petitions are not maintainable under Article 184(3) of the Constitution. We, accordingly, leave these controversies open for the petitioners to agitate before any competent forum, if they are so advised.

The second category of the grievances of the petitioners in the above cases relate to the enforcement of their Fundamental Rights of freedom of trade, business or profession and the right to acquire, hold and dispose of the property in accordance with the law. From the documents placed before us by the parties in the above cases, it is established that all the vehicles which are subject-matter of these cases, were imported by the petitioners by establishing valid letters of credit. The learned counsel for the Federal Government and the banks have raised objection that under terms of the letters of credit, the property in the goods did not pass on to the petitioners and, therefore, it could not be said that the petitioners had acquired proprietary rights in these vehicles. We have carefully examined the terms of letters of credit, under which these vehicles have been imported by the petitioners. We could not find any term in the contract of Letters of Credits which reserved the right of disposal of; these vehicles to the seller after they were shipped for transmission to the petitioners (buyers). Section 23 of the Sale of Goods Act, 1930 which governed the sale in the present cases reads as follows:-

'23. Sale of unascertained goods and appropriation.---(1) Where there is a contract for the sale of unasertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriate to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon, passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made.

(2) Delivery to carrier. ---Where, in pursuance of the contract, the seller delivers the goods to the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract.'

We are, therefore, of the view that in terms of section 23 of the Sales of Goods Act, as soon as these vehicles were put on board for shipment to the petitioners and the bill of loading and invoices were drawn in their names, the property in the goods passed to the petitioners and the only right which the seller possessed in respect of these vehicles was the right to claim the balance price of these vehicles from petitioners. We are, therefore, of the view that to the extent the right of petitioners to dispose of these imported vehicles in accordance with Yellow Cab Scheme, was obstructed or denied by the Government, it constituted violation of their right of freedom to follow a lawful trade and business and their right to acquire, hold and dispose of property in accordance with law which was granted under Articles 18 and 23 of the Constitution. It is not denied by the learned counsel for the Federal Government that the question raised in the above cases of public importance. The jurisdictional requirements of Article 184(3) of the Constitution in respect of the second category of reliefs claimed in the above petitions are, therefore, satisfied and the petitions to that extent are maintainable."

46. The learned counsel also relied on the following observations from the judgment of one of us (Justice Saiduzzaman Siddiqui) in the case of Shahid Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632):-

"The jurisdiction of this Court in a case under Article 184(3) of the Constitution arises on existence of two conditions mentioned in this Article. Firstly, that the Court considers that the matter brought before it involves a question of public importance, and secondly, that it relates to enforcement of any of the Fundamental Rights guaranteed under Chapter I, Part II of the Constitution. Apart from these two jurisdictional requirements, no other considerations are relevant for exercise of power by this Court under Article 184(3) of the Constitution."

47. Referring to the cases in hand, Mr. Abdul Hafeez Pirzada contended that the questions raised in the above petitions are no doubt of great public importance but this fact alone is not sufficient to confer jurisdiction on this Court to take cognizance under Article 184(3) of the Constitution as the other equally important jurisdictional requirement relating to enforcement of a fundamental right guaranteed under Chapter 1, Part II of the Constitution, is totally missing in these cases. Mr. Abdul Hafeez Pirzada very vehemently argued that the alleged unconstitutionality in the appointment of respondent No.2 as the Chief Justice of Pakistan could not by any stretch of imagination be said to have infringed any of the Fundamental Rights mentioned in Chapter 1 Part II of the Constitution muchless the Fundamental Rights of the petitioners in these cases.

48. There can be no cavil with the broad proposition canvassed by Mr Abdul Hafeez Pirzada that in order to take cognizance of a case under Article 184(3) of the Constitution by this Court, it must be shown that the question raised in the petition is one of public importance and that the relief claimed therein relates to the infringement/enforcement of a fundamental right guaranteed under the Constitution. However, while interpreting the scope of Article 184 (3) of the Constitution, this Court has not followed the conventional interpretative approach based on technicalities and ceremonious observance of rule of usage of interpretation and has preferred the interpretative approach which received inspiration from the tirad of provisions which saturated and invigorated the entire Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights and Directive Principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam. This liberal interpretative approach opens the door of "access of justice to all". See Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416).

49. The petitioner in Constitutional Petition No.248-Q of 1997 in support 'of the reliefs claimed in the petition, has relied on the following facts:-

"1. That the petitioner is citizen of Pakistan and has always struggled for preservation of democratic system, independence of judiciary, political unity, stability and integrity of Pakistan. He has been greatly perturbed by on going crises, confrontation between different organs of the State and an atmosphere abounded by intrigue which unfortunately, for the last few months is prevailing in the country and has brought its economy to the brink of ruination and driven the whole nation to consequences horrible to contemplate. All this coupled with the events mentioned hereunder has resulted in infringement of the petitioner's Fundamental Rights guaranteed by the Constitution particularly the rights envisaged by Articles 2A, 4, 9, 25, 175, 176, 177 and 180 of the Constitution, which actuated him to invoke the jurisdiction of this Hon'ble Court under Article 184 (3) of the Constitution. The facts from which the instant petition stems are set down below:

2. That on 20th March, 1996, in the judgment reported as PLD 1996 SC 324 in the case commonly known as 'Judges Case' which deals with the induction of Judges and their appointment against the higher posts including Chief Justice, in the superior judiciary, it has clearly been laid down that the senior most of the Judges, shall have legitimate expectancy for appointment against higher post and as Chief Justice and if he is ignored, reasons shall have to be given for the same. Since the announcement of this judgment, the rule laid therein has been holding the field and applies to the Supreme Court as well.

3. That the independence of judiciary is closely inter-linked with the method and mode of appointment of Judges in the superior judiciary which on its turn has a strong bearing on the maintenance and preservation of public confidence in the judicial system, administration of justice and proper functioning of the Courts in the country.

4. That learned respondent No.2 was appointed as Chief Justice of Pakistan under Notification, dated 5th June, 1994 (Annexure "A") issued by respondent No. l in pursuance of Article 177 of the Constitution. On the date of his appointment, he was not the senior most Judge in the Supreme Court and at least three learned Judges (1) Mr. Justice Saad Saood Jan, (2) Mr. Justice Ajmal Mian and (3) Mr. Justice Abdul Qadeer Chaudhry, were then senior to him who were not considered for appointment as Chief Justice muchless the giving of reasons for ignoring them. It may be added that in the meanwhile Mr. Justice Saad Saood Jan and Mr. Justice Abdul Qadeer Chaudhry retired. The appointment of respondent No. 2 is illegal and in contravention of the law laid down in the Judge's case which is applicable to the appointment under Article 177, and is thus liable to be set aside. It may respectfully be pointed out that the interpretation of Articles 177 and 180 of the Constitution which would have imperatively touched upon the question of validity of appointment of respondent No.2 as Chief Justice, fell for consideration before the Bench which decided the Judge's case but was left open as the same issue had been raised in the then pending other cases. It is understood that subsequently the other petitions involving the said issue were not pressed. This however, does not mean that the issue stands clinched. It has to be decided one way or the other and validity of appointment of learned respondent No. 2 determined by the apex Court which is the guardian of the Constitution. It may further respectfully be urged that learned respondent No. 2 headed the Bench which decided the Judge's case.

5. That under the Constitutional mandate that the said judgment is binding on all authorities in the country and should have been followed in letter and spirit by every one. In the matter of recent induction of five Judges in the Supreme Court, the respondent No. 2 himself has been insisting upon compliance with the seniority rule enunciated on the 20th March judgment but despite not being the senior-most Judge even now, he is continuing in office and did not step down. With respect for respondent No. 2 he is violating the judgment continuously.

6. That in the Judges' case recognition has also been given to Constitutional conventions. In accordance with such conventions, in Pakistan, except the departure made by respondent No. 2, the senior most Judge of Supreme Court invariably has been appointed as Chief Justice of Pakistan. The notification (Annexure A) is thus liable to be can celled and respondent No. 2 removed from the Office of the Chief Justice. "

50. ?????? In Constitutional Petition No.55 of 1997, the petitioner, who is an Advocate and Chairman of Civil Liberties Union of Pakistan, has based his claim to the reliefs in the petition, on the following facts:--

(1) ?????? That the petitioner is the Chairman of Civil Liberties Union o' ?? Pakistan.

(2) ?????? That the petitioner is a citizen of Pakistan and believes in democratic and independent Judiciary and Fundamental Rights as guaranteed by the Constitution. He has high respect for the Judiciary and holds the supremacy of judiciary and parliament in high esteem.

(3) ?????? The democratic Constitution of Pakistan is based on principle of trichotomy of power based on three organs of the State namely, the Legislature, Executive and Judiciary, each having specified and defined role under the Constitution.

(4) ?????? The Fundamental Rights have been guaranteed by the Constitution and the Judiciary protects and preserves not only, the guaranteed Fundamental Rights but also the Constitution from encroachment by any person, authority or organ. It is a well-recognised principle that each organ has to act without encroaching upon the power of the other. The Judiciary has been assigned an important role to interpret the Constitution and declare the law of the country.

(5) ?????? That it is the confirmed view of our Courts that right of access to justice is a Fundamental Right of a citizen granted under Article 9 of the Constitution. Reference can be made to the Sharaf Faridi's case PLD 1989 Karachi 404 which was confirmed in the Judge's case PLD 1996 at page 423. Reference can also be made by Government of Balochistan v. Azizullah and others PLD 1993 Supreme Court 341. It is well-settled that without an independent Judiciary the Fundamental Right enshrined in the Constitution will be meaningless and will have no efficacy or beneficial value to the public-at-large. The entire exercise and the principle laid down in the Judge's case are directed towards establishing and maintaining an independent, impartial and honest judiciary to provide guards to the rights of the people provide safeguard.

(6) ?????? The appointment of the Judges has to be made on the well-known principle involving effective consultation with a view to secure best possible talent for the judiciary. The independence of judiciary is deeply connected with Constitutional process of the appointment and transfer of Judges of superior Courts. It was in this view of the matter that the Judge's case declared seniority as one of the most important criteria for appointment of Chief Justice or elevation to the Supreme Court. The principle of seniority finds great emphasis in the Constitution, in respect of appointment of Chief Justice of Pakistan. Article 180 provides the guideline for appointment of the Acting Chief Justice and there is no reason to disregard this principle of seniority in the appointment of Chief Justice of Pakistan. In the Judge's case the principle for appointment of Chief Justice of Pakistan was not touched upon and was kept open. Reference will be made to the relevant observations of the learned Judges at the time of argument.

(7) ?????? Respondent No. 2 was appointed as Chief Justice of Pakistan by Notification dated 5-6-1994, copy of the same is enclosed herewith and marked as Annexure ' A' issued by the respondent No. 1. On the date of his appointment respondent No. 2 was not the senior most Judge of the Supreme Court of Pakistan. It is pertinent to note that Mr. Justice Saad Saood Jan, Mr. Justice A. Qadeer Choudhry and Mr. Justice Ajmal Mian were senior to respondent No. 2. Prior to the impugned Notification Mr. Justice Saad Saood Jan was performing the duties of Acting Chief Justice being the senior-most Judge after the retirement of Chief Justice Dr. Nasim Hassan Shah. However, without giving any reason, the aforesaid 3 learned Senior Judges were ignored and superseded by appointing respondent No. 2 as Chief Justice of Pakistan.

(8) ?????? In addition to what has been stated in the said petition it is submitted that the Chief Justice holds a pivotal position not only in decision making but also administratively by forming the Constitution of Bench of the Judges and fixing the roster. Respondent No. 2 has misused this power inasmuch as in important ? cases having political overtones influencing the economic, social and political conditions of the country which require constitution of larger Bench mostly of senior Judges, has not been followed. Most important cases relating to the rights of Parliament and interpretation of Constitution were heard by smaller Benches mostly ignoring the Senior Judges. It is a cardinal principle of justice that justice should not only be done but it should be seen to have been done. This principle has not been followed resulting in loss of public confidence and faith in one of the most important organ of the State. Administratively also the performance is no better. It can be seen that many of the Judges of High Court and 2 ad hoc Judges of the Supreme Court who were appointed on the recommendations of respondent No. 2 hit by the Judges' case and had to be relieved of their duties: "

51. Similarly, the petitioner in Constitutional Petition No. l-P of 1997, who an Advocate of this Court, has stated the following facts in support of the rliefs claimed in the petition:-

(1) ?????? That the petitioner is a peaceful citizen of Pakistan and had always remained a well-wisher and had been endeavouring for the stability of the country. But for the last few months the Nation is suffering from fever of grave consequences arising out of the displeasures created between the Executive and the Judiciary of the country and the events had been instrumental to the infringement of the Fundamental Rights of the petitioner as guaranteed by the Constitutional provisions as envisaged by Articles 2A, 4, 9, 25, 175, 176, 177 and 180 and other relevant provisions which has constrained the petitioner to invoke the jurisdiction of this Hon'ble Court under Article 184(3) of the Constitution.

(2) That the salient features from which the present petition stems out are given below.

(3) That in the famous judgment reported in PLD 1996 SC 324, the matter regarding the induction of Judges and their appointments against the higher posts including the Chief Justice in the Superior Judiciary, it has candidly been held in the mentioned judgment that the senior most of the Judges shall be legitimate expectancy for appointment against the higher post and as Chief Justice, and if he is ignored, reason shall have to be given. Eversince this pronouncement the rule and the law propounded had been holding the grounds and also applies to the Supreme Court as well.

(4) That the independence of Judiciary is also based on the method and mode of the appointment of Judges which strength the judicial system of the country and the administration of justice and proper functioning of the Court in all over the country.

(5) That the Hon'ble respondent No. 1 was appointed as Chief Justice of Pakistan vide Notification dated 5-6-1994 issued by the respondent No.3. At the time of appointment of respondent No. 1 there were as many as three Supreme Court Judges senior to respondent No. 1 namely Mr. Justice Saad Saood Jan, Mr. Justice Ajmal Mian and Mr. Justice Abdul Qadeer Choudhry. These three Judges (senior most) were not considered for appointment as Chief Justice and no reasons were given for ignoring them. Presently, Mr. Justice Saad Saood Jan and Mr. Justice Abdul Qadeer Choudhry stand retired. The appointment of respondent No. 1 is illegal and in contravention of the law laid down in the said reported judgment which is also applicable to the appointment of the Chief Justice, under Article 177 of the Constitution and thus is liable to be set aside.

(6) ?????? That it is respectfully submitted that respondent No. 1 headed the Bench which decided the Judges' case, Since respondent No. 1's own appointment was involved in the case, the propriety demanded that he should not have sit in the Bench who delivered the said judgment as he was one of the affectee of the judgment. This amounts to acting by respondent No. 1 in his own cause.

(7) ?????? That under the Constitution the said judgment is binding on all the authorities in the country and it should have been followed in letter and spirit by every one.

(8) ?????? That in the matter of recent appointment of five Judges in the Supreme Court the respondent No. 1 himself has been insisting upon the compliance of the said judgment.

(9) ?????? That respondent No. 1 despite the fact that he being not the senior most Judge, he is continuing in office even now, therefore, it can be said that respondent No. 1 is violating the judgment himself continuously."

52. From the above stated facts it is quite clear that the grievance of the petitioners in the above case is, that on account of violation of rule of seniority in the appointment of respondent No. 2 as the Chief Justice of Pakistan, the public confidence in the apex Court has been shaken and its image as neutral arbiter in the disputes between citizen and citizen and between citizens and Government has been tarnished thus violating their fundamental right to have free, fair and equal access to an independent and impartial Court/Tribunal.

53. In the case of Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341), the following observations of Saleem Akhtar, J. (as he then was) made in the case of Sharaf Faridi v. Islamic Republic of Pakistan (PLD 1989 Karachi 404) were quoted with approval by a Bench of this Court consisting Muhammad Afzal Zullah, C.J., Saleem Akhtar and Wali Muhammad, JJ.:-

"12. Another aspect of the case is that by these provisions the rights of access to Courts and justice has been denied. This by itself is an infringement of Fundamental Rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty save in accordance with law. An examination of Articles 9 and 25 read collectively does not permit the Legislature to frame such law which may bar right of access to the Courts of law and justice. This aspect of the case was considered in Sharaf Faridi v. Islamic Republic of Pakistan PLD 1989 Karachi 404 when after referring to Syed Abul A'la Maudoodi's case PLD 1964 SC 673 at 710 and Ms. Benazir Bhutto's case PLD 1989 SC 416 I had observed as follows:-

The right of 'access to justice to all' is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term 'due process of law' has been summarised as follows:-

(1) ?????? He shall have due notice of proceedings which affect his rights

(2) ?????? He shall be given reasonable opportunity to defend.

(3) ?????? That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and

(4) ?????? That it is a Court of competent jurisdiction.

It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial Court and Tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore, justice can only be done if there is an independent judiciary which should be separate from executive and not at its mercy or dependent on it. "

The above quoted observations were also reproduced with approval in; the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) Mr. Abdul Hafeez Pirzada, however, argued that the observations of this Court in Al-Jehad Trust Case, supra, are not applicable in the present case as Al-Jehad Trust case arose from a writ petition, filed before the Lahore High Court, under Article 199 of the Constitution challenging the appointments of Additional Judges of that Court, Which was dismissed and a petition for leave to appeal against the judgment of Lahore High Court was filed in which leave was granted. The learned counsel, accordingly, argued that Al-Jehad Trust case was in fact an appeal arising from the judgment of the High Court, passed under Article 199 of the Constitution and as such the scope of those proceedings was much wider and the preliminary objection to the maintainability of the proceedings under Article 184(3) of the Constitution raised by him in the present cases was not available in Al-Jehad Trust case. The contention of the learned counsel has not impressed us.

54. The basis of Al-Jehad Trust case (supra), was a petition filed under Article 184(3) of the Constitution directly before this Court challenging the appointment of the then Acting Chief Justice of Pakistan, appointment of Chief Justice of High Court of Sindh as a Judge of Federal Shariat Court and not confirmation of six Additional Judges of the High Court of Sindh, who were not appointed as permanent Judges of that Court on completion of their initial period of appointment. This petition was admitted to regular hearing along with a petition for leave to appeal arising from a writ petition filed under Article 199 of the Constitution before the High Court of Lahore. An objection regarding maintainability of petition under Article 184(3) of the Constitution and the locus standi of petitioner was specifically raised in Al-Jehad Trust case similar to the one raised by Mr. Abdul Hafeez Pirzada before us in the above petitions but it was repelled as follows:-

"12. As regards the locus standi of Mr. Khairi, I may observe that Mr. Khairi has referred to Rule 165 of Pakistan Legal Practitioners and Bar Councils Rules, 1976, hereinafter referred to as the Rules, framed under section 55 of the Bar Councils Act, 1973, which provides as follows:

'165. It is the duty of Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. They should protest earnestly and actively against the appointment or selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments, whether of a business, political or other character which may embarrass their free and fair consideration of the questions before them for decision. The aspiration of Advocates for judicial positions should be governed by an impractical estimate of their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves' . "

He has also referred to the following cases:-

(1)Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989. Karachi 404);

(2)Government of Sindh through Chief Secretary, Karachi v. Sharaf Faridi and others (PLD 1994 SC 105);

(3)S.P. Gupta case (AIR 1982 SC 149); and

(4)Supreme Court Advocates-on-Record Association v Union of India (AIR 1994 SC 268).

13. Rule 165 of the Rules relied upon by Mr. Khairi enjoins the Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. It also enjoins the Advocates that they should protest earnestly and actively against appointment and selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments whether of business, political or other character which may embarrass their free and fair consideration of the questions before them for decision.

14. The above reports relied upon also support Mr. Khairi's contention. I am inclined to hold that not only a practising Advocate but even a number of the public is entitled to see that the three limbs of the State, namely, the Legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affect the public at large. The Fundamental Rights, which are enshrined in our Constitution and which also have the backing of our religion Islam, will become meaningless if there is no independent Judiciary available in the country. The independence of .Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. If the appointments of Judges are not made in the manner provided in the Constitution or in terms thereof, the same will be detrimental to the independence of Judiciary which will lead to lack of confidence among the people. In my view, the appellants/petitioners have locus standi as the Constitutional questions raised in the appeal as well as in the aforesaid Constitutional petition of great public importance as to the working of the Judiciary as an independent organ of the State. Even otherwise, the question of locus standi in the present case has lost significance for the reason that we have admitted the above Constitutional petition under Article 184(3) of the Constitution for examining the scope and import of the provisions relating to Judiciary. It may be observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution even suo motu without having any formal petition . . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . .

18. At this juncture, I may point out the right to have access to justice through an independent Judiciary is a Fundamental Right as held in the case of Sharaf Faridi (supra) by Saleem Akhtar, J. In this regard, reference may be made to the following observation:-

" 'The right of access to justice to all' is a well recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial, and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby on Constitution of United States, Second Edition, Vol. II at page 1709 where the term 'due process of law' has been summarised'. "

The above view has been affirmed by this Court in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341). "

55. In our view right of access to impartial, and independent Courts/Tribunuis is a fundamental right of every citizen. The existence of this right is decedent on the independence of judiciary. The independence of judiciary can be secured only through appointment of persons of unimpeachable integrity, high repute and competence, strictly in accordance with the procedure prescribed under the Constitution, to the high offices of the Judges of superior Courts. The selection of a person to the high Office of the Chief Justice of Pakistan, is a pivotal appointment for maintaining the independence of judiciary and for providing a free and unobstructed access to impartial and independent Courts/Tribunals to the ordinary citizens of the country. Therefore, any deviation from the method of appointment prescribed under the Constitution to the high Office of Chief Justice of Pakistan is likely to shake the public confidence in the institution of judiciary and to tarnish its image as the neutral arbiter in dispute between citizen and citizen and citizen and State, thus, infringing the Fundamental Rights of citizens guaranteed under Articles 9 and 25 of the Constitution to have free, fair and equal access to independent Courts/Tribunals. Apart from it, the petitioners in the above petitions have sought information in the nature of quo warranto against respondent No. 2 who is holding a public office and such a petition can be brought by any person. We are, therefore, of the view that the petitioners who are not only the citizens of Pakistan, but two of them are practising Advocates and one of them is also the Chairman of Civil Liberties Union of Pakistan, have necessary locus standi to file the above petitions. The petitioners have alleged that the appointment of respondent No. 2 as the Chief Justice of Pakistan, in breach of rule of seniority is in violation of the provision of Article 177 of the Constitution, and therefore, he is not entitled to hold and continue in the Office of Chief Justice of Pakistan. Besides it is also alleged that the appointment of respondent No. 2 in violation of the provisions of the Constitution, has infringed the rights of the citizens in general to have free, fair and equal access to impartial and independent Courts/Tribunals, thus, violating the Fundamental Rights guaranteed under Articles 9 and 25 of the Constitution. We are, therefore, of the view that both the jurisdictional requirements for entertaining a petition under Article 184 (3) of the Constitution are fully made out in these cases. The preliminary objection raised by Mr. Abdul Hafeez Pirzada accordingly, fails.

56. The next objection of Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No. 2 is, that Justice Saiduzzaman Siddiqui, Justice Fazal Ilahi Khan, Justice Irshad Hasan Klan, Justice Nasir Aslam Zahid, Justice Khalil-urRehman Khan and Justice Shaikh Riaz Ahmad are disqualified to sit on the Bench to hear these cases. The learned counsel objected to the presence of first mentioned five Judges of this Court, on the ground that they were biased against respondent No.2 as they ~ entertained petitions at Peshawar and Quetta respectively against the appointment of respondent No. 2 as Chief Justice of Pakistan in violation of the Rules and express direction of Hon'ble Chief Justice of Pakistan to the contrary. The presence of Justice Saiduzzaman;,Siddiqui on the Bench is also objected on the ground that he has a personal interest in the cases as he is the next senior Judge of this Court, after Justice Ajmal Mian, and if the rule of seniority for appointment of Chief Justice of Pakistan is upheld, he will be a direct beneficiary and after retirement of Justice Ajmal Mian as Chief Justice of Pakistan in June, 1999, he will automatically be appointed as the Chief Justice of Pakistan. Another ground on which Mr. Abdul Hafeez Pirzada objected to the presence of Justice Saiduzzaman Siddiqui on the Bench is, that respondent No.2 has made a Reference against Justice Saiduzzaman Siddiqui, to the President of Pakistan under Article 209 of the Constitution, and therefore, he cannot hear a case wherein the appointment of respondent No.2 is in question. The presence of Justice Shaikh Riaz Ahmad on the Bench is objected by respondent No.2 on the ground that Justice Shaikh Riaz Ahmad was associated with the process of appointment of respondent No.2 as the Chief Justice of Pakistan, in his capacity as the Federal Law Secretary.

57. We will first take up the objection of Mr. Abdul Hafeez Pirzada, regarding presence of Justice Shaikh Riaz Ahmad on the Bench. There is no allegation of personal bias or prejudice on the part of Justice Shaikh Riaz Ahmad against respondent No.2. His presence on the Bench is objected to on the sole ground that he was the Federal Law Secretary when the case of respondent No. 2 was processed in the Ministry of Justice, Law and Parliamentary Affairs for appointment as the Chief Justice of Pakistan. Respondent No. 2 was appointed as the Chief Justice of Pakistan on 5-6-1994. Before appointment of respondent No.2 as Chief Justice of Pakistan, the then Prime Minister of Pakistan, Miss Benazir Bhutto directed the then Federal Law Secretary (Justice Sh. Riaz Ahmad) to prepare a summary for appointment to the Office of Chief Justice of Pakistan which had fallen vacant on account of retirement of Justice Nasim Hasan Shah. We had summoned the file containing the original summary regarding appointment of respondent No. 2 as the Chief Justice of Pakistan prepared by Justice Shaikh Riaz Ahmad in his capacity as the Federal Law Secretary. The summary prepared by Justice Shaikh Riaz Ahmad merely mentioned the facts that the Office of Chief Justice of Pakistan had fallen vacant with the retirement of Justice Nasim Hasan Shah and that the issue of the appointment of the permanent Chief Justice of Pakistan is being raised in the press as well as by Members of the Bar. Along with the summary, the names of five senior Judges of this Court with their respective dates of retirement without any further comments were sent to the Prime Minister. Beyond this, Justice Shaikh Riaz Ahmad had no role in the appointment of respondent No. 2 as the Chief Justice of Pakistan. The decision to appoint respondent No. 2 as the Chief Justice of Pakistan, was taken solely and exclusively by the then Prime Minister of Pakistan, Miss Benazir Bhutto. In the case of Islamic Republic of Pakistan v. Abdul ? Wali Khan (PLD 1976 SC 57) which was a Reference by the Federal Government under section 17(2) of the Constitution, the Bench which heard the case consisted of Hamoodur Rehman, C.J. Yaqub Ali, Salahuddin Ahmed, Anwarul Haq, Muhammad Gul and Muhammad Afzal Cheema, JJ: The respondent in that case objected to the presence of justice Muhammad Gul and Justice Muhammad Afzal Cheema on the Bench. The presence of former on the Bench was objected on the ground that he had already dealt with the question of continued detention of the respondent and other leaders of N.A.P. in his capacity as the Chairman of the Advisory Board, constituted under Article 10(iv) of the Constitution, and therefore, he had already formed an adverse opinion in the case. The presence of Justice Muhammad Afzal Cheema on the other hand was objected to on the ground that before his elevation as a Judge of Supreme Court, he acted as Federal Law Secretary and in that capacity he might have dealt with the Reference before this Court. These objections were ,repelled by this Court as follows:-

"No specific allegations had been made against Mr. Justice Muhammad Afzal Cheema. All that was said was that since he was, before being elevated to the Bench of this Court, a Secretary in the Ministry of law and Parliamentary Affairs, Government of Pakistan, he might have. in that capacity, had occasion to deal with the question of the banning of the National Awami Party at some stage or the other, since one of the Ministers of the Government of Pakistan, who was also at one stage a Minister of Law and parliamentary Affairs, had public in stated that the question of the banning of the Party was under examination for over a period of 2/3 years, during which period Mr. Justice Muhammad Afzal Cheema was Secretary of the Ministry concerned. I must reiterate what I have said in my earlier order passed on the 16th June, 1975, that no Judge can possibly be disqualified on the ? basis of such a vague and nebulous suggestion. Mere suspicion of bias, even if it is not unreasonable is not sufficient to disqualify a Judge. In the present case, however, even the suspicion is wholly unreasonable, because, it does not necessarily follow that it is the Ministry of Law which must have examined the question of banning of the Party or that the Secretary of the Ministry had of necessity to deal with this question. Most of the witnesses who have now come before us confirm that the examination of the question of the banning of the Party was done mainly by the Ministry of Interior, Government of Pakistan and not the Ministry of Law.

So far as Mr. Justice Muhammad Gul is concerned it is said that since he has already dealt with the question of the continuance of the detention of Mr. Abdul Wali Khan and some other leaders of the National Awami Party as Chairman of the Advisory Board, constituted under clause (iv) of Article 10 of the Constitution of the Islamic Republic of Pakistan 1973 he has already dealt with the bulk of the material which forms the basis for the banning of the Party as well and, therefore he must be held to have made up his mind one way or the other and, thus, disqualified himself from sitting on the Bench. Even this I must add is a wholly untenable proposition and cannot be treated as a sufficient ground for disqualifying Mr. Justice Muhammad Gul. As pointed out by the learned editors of American Jurisprudence even 'at common law bias or prejudice on the part of a Judge not the result of interest or relationship is not supposed to exist and generally it does not incapacitate or disqualify a Judge to try a case unless the Constitution or Statute so provides' (vide American Jurisprudence, Vol. 30, page 774, paragraph 74;:

The basis of the disqualification, therefore, is 'personal bias or prejudice' of such a nature as would necessarily render a Judge unable to exercise his functions impartially in a particular case, and this must be shown as a matter of fact and not merely as a matter of opinion. In the absence of any Constitutional or statutory bar a Judge is not disqualified from sitting at a trial of a person merely because previously he had participated in other legal proceedings against the same person, whether in the capacity of a Judge or of an Administrative Tribunal or official it makes no difference. There is abundant authority from the American Jurisdiction to support the view that the mere fact that a Judge has dealt with another matter concerning the same person in another capacity does not necessarily disqualify him from sitting as a Judge at the trial of that person.

In the present case, however, even this analogy is not apt, because, before the Advisory Board, of which Mr. Justice Muhammad Gul is the Chairman, the question was as to whether the detention of Mr. Abdul Wali Khan and of some other members of the party should be continued or not. There was no question there at all of the banning of the party. To say, therefore, that because the detention of some of the persons concerned has been extended a decision has already been taken with regard to the banning of the Party is neither factually nor legally correct. There is no allegation of any personal animosity or ill-will against Mr. Justice Muhammad Gul nor has it been shown that he has any personal interest in the matter of any kind at all, nor can it be said that the personal attitude of Mr. Justice Muhammad Gul is likely to be affected in this case because of any opinion that he may have formed as the Chairman of the Advisory Board.

The decision of the questions now before us will have to be made on the basis of the evidence adduced in this Court and not on the basis of any material which might have been produced before the Advisory Board. Such an improper allegation of bias is, in my view, opposed to all cannons of decency and was least to be expected from a person who started his peroration before the Court by professing his constant endeavour to preserve the rule of law and the highest respect for law.

Cornelius, C.J. held in the case of M.H. Khondkar v. The State PLD 1966 SC 140 that 'it is open to a litigant to raise in the face of a Court an allegation of bias in that Court', whether it be a superior or a subordinate Court, but even he felt the necessity of recording the caution that 'mere apprehension in the mind of a litigant that he may not get justice such as is based on inferences drawn from circumstantial indications will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follows necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found contempt'. I subscribed to the same view then and do so even no. This Court has reaffirmed this view in its order passed on the 19th June, 1975, in this proceeding and I see no reason to depart therefrom as it appears to be based on the consensus of judicial opinion both in America and in Great Britain." (The underlining is by us).

58. In view of the above stated legal position, we are of the view that mere fact that Justice Shaikh Riaz Ahmad was at one stage associated with the case of respondent No. 2 for appointment as the Chief Justice of Pakistan, in his capacity as the Federal Law Secretary, could not debar him from hearing these cases wherein the constitutionality of the appointment of respondent No. 2 as the Chief Justice of Pakistan has been questioned. The points arising for consideration in the present cases have nothing in common with the note prepared by Justice Shaikh Riaz Ahmad, in his capacity as the Federal Law Secretary, for the Prime Minister of Pakistan, in connection with the appointment of respondent No. 2 as the Chief Justice of Pakistan. There being no element of personal bias or prejudice on the part of Justice Shaikh Riaz Ahmad against respondent No. 2, the objection raised by Mr. Abdul Hafeez Pirzada against his sitting on the Bench has no merit.

59. The presence of Justice Saiduzzaman Siddiqui, Justice Fazal Ilahi Khan, Justice Irshad Hasan Khan, Justice Nasir Aslam Zahid and Justice Khalil-urRehman Khan, on the Bench is objected to on the ground that they are biased against respondent No. 2, as they illegally entertained petitions under Article 184(3) of the Constitution at Peshawar and Quetta Registries respectively, against the provisions of Order XXV of the Rules and the express prohibition contained in the Office Order of Chief Justice of Pakistan issued in 1981 in this behalf. Respondent No. 2 has, however, not alleged any facts showing personal bias or prejudice on the part of these five Judges against him. We have already held in this judgment earlier that the entertainment of the petitions under Article 184(3) of the Constitution by the Benches working at Quetta and Peshawar was perfectly legal and valid. Therefore, the objection of Mr. Abdul Hafeez Pirzada to the extent that proceedings under Article 184(3) of the Constitution were entertained at Quetta and Peshawar respectively, illegally, loses its force. The other limb of the objection of Mr. Abdul Hafeez Pirzada is that by admitting the petitions under Article 184(3) of the Constitution, wherein appointment of respondent No. 2 as the Chief Justice of Pakistan was challenged, the above five Judges had expressed their opinion and bias against respondent No. 2, This part of the submission of Mr. Abdul Hafeez Pirzada is equally devoid of any merit. Mere fact that five of us had admitted two petitions to regular hearing at Quetta and Peshawar, respectively, wherein the validity of the appointment of respondent No. 2 as the Chief Justice of Pakistan was challenged neither amounted to the display of any bias on our part against respondent No. 2 nor it amounted to the expression of final opinion on the controversy in these cases. The fact that a petition is admitted to regular hearing by a Judge only shows that the issues raised therein required more detailed and further consideration. The opinion expressed by a Judge at that stage is only tentative in nature and not a final expression of his opinion in the case. If the above argument of Mr. Abdul Hafeez Pirzada is accepted then all those Judges who happen to grant leave to appeal in cases or admit direct petitions under Article 184(3) of the Constitution for regular hearing, will be debarred from sitting on the Benches hearing these matters finally. This is contrary to the practice followed by this Court that a matter is to be heard as far as possible by the same Bench which had earlier dealt with it. In fact in matters of review when the Judges have already finally expressed their opinion in a case, the Rule of this Court requires that the case is to be placed before the same Bench which finally decided the case. Against Justice Saiduzzaman Siddiqui, presiding over the Bench and hearing these cases, Mr. Abdul Hafeez Pirzada has raised two additional objections. Firstly, it is contended that Mr. Justice Saiduzzaman Siddiqui, has a direct personal interest in the matter as in case this Bench upheld the application of principle of seniority for appointment to the Office of Chief Justice of Pakistan, he will automatically be appointed as the Chief Justice of Pakistan in June 1999 on the retirement of Justice Ajmal Mian. The contention loses sight of the fact that Justice Saiduzzaman Siddiqui is not the senior most Judge of this Court to be benefited immediately if the rule of seniority for appointment to the Office of Chief Justice of Pakistan is upheld. The direct beneficiary in such an event will be the Justice Ajmal Mian who will take over as the Chief Justice of Pakistan and in that case Mr. Justice Sajjad Ali Shah becomes the Senior Pusine Judge to succeed Mr. Justice Ajmal Mian. Justice Saiduzzaman Siddiqui's expectancy to the Office of Chief Justice of Pakistan, in that event materializes only on the retirement of Justice Ajmal Mian and Mr. Justice Sajjad Ali Shah. It is, therefore, quite clear that Justice Saiduzzaman Siddiqui is neither a direct nor an immediate beneficiary if the rule of seniority is upheld by this Bench for appointment to the Office of Chief Justice of Pakistan in these cases. The interest of Justice Saiduzzaman Siddiqui, if any, at best will be contingent upon failure of Mr. Justice Ajmal Mian and Mr. Justice Sajjad Ali Shah to get the appointment as the Chief Justice of Pakistan. In the case of Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 SC 689), Muhammad Afzal Zullah, J. in his concurring note highlighted the interest of a Judge in a case which debarred him from hearing that case, as follows:-

"Regarding the additional submission made by the learned Attorney General after the arguments, in a written application wherein reliance was placed on clause (1) of Article IV of the Code of Conduct, suffice it to observe that the expression 'a case involving his own interest' means the direct involvement in the case which is being determined by the Court of which the Judge is a Member. The interest should not be contingent and dependent upon other cases or matters which are yet to be decided. Prima facie, therefore, the said clause is not attracted."

The objection of Mr. Abdul Hafeez Pirzada that Justice Saiduzzaman Siddiqui should not sit on the Bench as he has direct personal interest in these cases is accordingly overruled.

60. The last objection of Mr. Abdul Hafeez Pirzada to the sitting of Justice Saiduzzaman Siddiqui on the Bench is, that respondent No. 2 had asked for a Reference against Justice Saiduzzaman Siddiqui before Supreme Judicial Council on account of his alleged misconduct and therefore, he is disqualified from hearing the cases against respondent No. 2. Respondent No. 2 addressed a letter to the President of Pakistan, wherein besides highlighting the unfortunate incident of storming the Supreme Court Building by an unruly mob on 28-12-1997, he also pointed out the alleged misconduct of Justice Saiduzzaman Siddiqui, in these words:-

"I am very sorry to state that Mr. Justice Saiduzzaman Siddiqui, a Judge of this Court, who is presiding a Bench of three Judges at Peshawar Registry, has issued an administrative order constituting Full Court consisting of 15 Judges to commence sitting on 1-12-1997 for hearing of the cases at Islamabad. He has heard and decided a petition under Article 184 (3) of the Constitution which cannot be registered and heard at Peshawar Registry and can be registered and heard only at the principal seat of the Supreme Court unless so authorised by the Chief Justice. This petition was taken up for hearing without any authorisation from me and such action was also taken by two Judges, namely, Mr. Justice Irshad Hasan Khan and Mr. Justice Khalil-ur-Rehman Khan at Quetta without permission of the Chief Justice and the order was passed holding in abeyance the notification of my appointment as Chief Justice, which order has been set at night by the Bench of five Judges by majority of four to one sitting at the principal seat. Mr. Justice Saiduzzaman Siddiqui, as stated above has passed an administrative order taking over the control of the whole administration, which is the exclusive function of the Chief Justice. This divide amongst the Judges of the Supreme Court is deliberately created by interested quarters. I do not want to make any comments on the conduct and attitude motivating such actions which smack of defiance and rebellion and amount to misconduct calling for action by the Supreme Judicial Council for which necessary steps are to be taken."

61. Without making any comment on the propriety and reasonableness of the above allegations against Justice Saiduzzaman Siddiqui, one thing is absolutely clear to us that respondent No.2 was of the opinion that the entertainment of the petition at Peshawar under Article 184 (3) of the Constitution by a Bench of which Justice Saiduzzaman Siddiqui was a member and then constituting a Full Court for hearing of the said case alongwith other similar cases at the Principal Seat by the Full Court amounted to an act of ? rebellion and defiance which fell in the category of misconduct. The misconduct alleged against Justice Saiduzzaman Siddiqui by respondent No.2 was, therefore, not on account of any impropriety in his behaviour or conduct as a Judge of this Court but on account of a judicial action which respondent No.2 was of the view, was not authorised by law while Justice Saiduzzaman Siddiqui considered it valid and in accordance with the law, in the given circumstances. This misconduct alleged against Justice Saiduzzaman Siddiqui was, therefore, a debatable legal issue. The action taken by Justice Saiduzzaman Siddiqui was considered as legal and in accordance with the law by the majority of the Judges of this Court, is evident from the fact that all the Judges functioning at Lahore, Quetta, Karachi and Peshawar Registries reacted positively to the request of Justice Saiduzzaman Siddiqui to attend the Full Court sitting at the Principal Seat on 1-12-1997 as they all arrived at Islamabad to attend the Full Court Session in time, notwithstanding the roster of sitting issued by respondent No.2, which required them to continue sitting at Lahore, Karachi, Quetta and Peshawar. We have already dealt with this aspect of the case earlier in this judgment and reached the conclusion that both the actions, namely the entertainment of direct petitions at Peshawar and Quetta under Article 184(3) of the Constitution and the constitution of a Full Court by Justice Saiduzzaman Siddiqui to hear all such matters at the Principal Seat in the circumstances of the cases, was not only legal and valid but -the only way out of the impasse. In these circumstances, mere writing of a letter by respondent No.2 to President of Pakistan asking for action against Justice Saiduzzaman Siddiqui, could not create a ground debarring him from presiding over the Bench or hearing these cases. The letter written by respondent No.2 to the President of Pakistan at best shows a bias of respondent No.2 against Justice Saiduzzaman Siddiqui and not the vice versa. We, therefore, overrule the objection of Mr. Abdul Hafeez Pirzada that Justice Saiduzzaman Siddiqui should not sit on the Bench and hear these cases as respondent No.2 has made a request to President of Pakistan for a Reference to Supreme Judicial Council against him.

While still on the subject of bias on the part of a Judge of the superior Court in dealing with a case before him, we would like to refer here some very instructive observations made by this Court in this behalf in M.H. Khondkar v. State (PLD 1966 SC 140), The President of Pakistan v. Justice Shoukat Ali (PLD 1971 SC 585), Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57) and Federation of Pakistan v. Muhammad Akram (PLD 1989 SC 689). The first-mentioned case (M.H. Khondkar v. State) was an appeal before this Court arising from contempt proceedings drawn by the High Court of Dacca against a party and his counsel on the basis of allegations made against the Chief Justice of that Court and a Member of the Bench which heard his case. Cornelius, C.J. in his judgment summed up the effect, manner and extent of the plea of bias against a Judge of a superior Court as follows:-

"As a result of this somewhat lengthy examination of the facts and the law in this case, certain propositions may be laid down, which it will be of advantage to the furtherance of justice to formulate in precise terms. They may be stated as follows:-

(1) It is open to a litigant to raise in the face of a Court an allegation of bias in that Court, and this is true whether it may be a superior or a subordinate Court. If such a plea is not raised before the Court as soon as the facts tin which it is based come to the knowledge of the litigant, he may find himself barred against relief under the provisions of Article 98 of the Constitution, in respect of the ultimate decision.

(2) The plea of bias involves criticism of a superior Court in point of its capacity to do justice, confidence in which is (a) vital to the proper functioning and even to the continuous existence of the Judiciary as at present constituted, and (b) essential, therefore, to the public interest. Consequently, such an action brings the agent within the range of the contempt jurisdiction, unless it can be actually justified on factual grounds, the onus of establishing which lies exclusively on him.

(3) ??????? Mere apprehension in the mind of a litigant that he may not get justice such as is based on inferences drawn from circumstantial indications will not justify the raising of the plea The facts adduced must be such that the conclusion of bias follow necessarily therefrom On no weaker ground can any person be permitted to attack the impartiality of a superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found in contempt " (The underlining is by us) S.A. Rehman, J. who was also one of the Members of the Bench which heard M.H. Khondker's case (supra), concluded as, follows, on the plea of bias by a party against a Judge of Supreme Court:-

"In my humble opinion the only species of bias in a Judge of a Superior Court that can be pleaded with immunity from proceeding in contempt, is that by which the Judge is disqualified from acting by reason of such identity of interest with a party as makes him a judge in his own cause. Even in such a case the objection must be confined to a statement of facts on which the disqualification is based without imputing motives to the Judge concerned. It appears to me, speaking with respect that the rule was correctly laid down by the majority judgment in Anwar v. The Crown PLD 1955 . FC 185 in this regard. Dimes v. Grand Junction Canal (1852) 10 ER 758, From United Breweries Co. v. Bath Justices LR 1926 AC 586, Rex v. Sasex Justices (1924) 1 KB 256, provide illustrations of the same principle from the English jurisdiction. I am not aware of any other case in which this principle might have been extended to by a Judge of a superior Court. As was pointed out by the Privy Council in Vidyasagara v. The Queen LR 1963 AC 589 (PC), different considerations may apply where an attack is made in a Court of review on the impartiality of a lower Court. It is significant that the law does not provide for a transfer application to be moved for transferring a case from one Judge or Bench of a High Court to another on such grounds, vide In re: Sham Law Advocate AIR 1932 Lah. 502 and Israr Hussain v. Crown PLD 1954 FC 313" (The underlining is by us).

63. The second noted case (The President of Pakistan v. Mr. Justice Shaukat Ali) was a Reference to the Supreme Judicial Council by the President of Pakistan against a Judge of the erstwhile High Court of West Pakistan. The respondent in that case alleged bias against the Chairman and Members of the Council. Hamoodur Rehman, C.J. who was Chairman of the Council rejected the allegation of bias as under:-

"The second objection of the respondent is, in our view, equally untenable. There is no question here of any personal bias in any individual member of the Supreme Judicial Council, and none has been alleged which could disqualify him from participating in the proceedings under the reference now before it. There is no allegation here that any member of the Council was in any view hostile or inimically disposed towards the respondent.

The mere assertion of bias can never be sufficient to disqualify a Judge in hearing a cause or matter. In the absence of any pecuniary or proprietary interest in the subject-matter of the proceeding, it is essential that a real likelihood of bias must be shown. The mere fact that the Council had scrutinised the declaration of assets is not sufficient to establish such likelihood of bias, for, if it were so, then no Judge, who issues a rule in a motion or issues a notice to show cause in any other proceeding or frame a charge in a trial can ever hear that matter or conduct that trial. The reason is that a preliminary inquiry intended to determine whether a prima facie case has been made out or not is a safeguard against the commencement of wholly unwarranted final proceedings against a person. To say that a charge should be framed against a person amounts to saying nothing more that the person should be tried in respect of it. Anybody who knows the difference between a prima facie case and its final trial would reject the objection as misconceived. We accordingly reject them as misconceived." (The underlining is by us).

64 The third mentioned case (Islamic Republic of Pakistan Abdul Wali Khan), was also a Reference by the Federal Government against a political party under Article 7(2) of the Constitution. The respondent in that case alleged bias against the two Judges hearing that case. Dealing with the allegation of bias against the Judges, Hamoodur Rehman, C.J., observed as follows:-

"As regards the objection taken to the constitution of the Bench, learned counsel were informed on the very first day that no party to a litigation can claim the right to be tried by a particular Judge or Judges of his choice. In the case of superior Courts, it is entirely a matter for the Judge or Judges concerned to decide as to whether they will or will not sit n that particular cases. Mr Wali Khan has ? been informed that both ? the learned Judges, against whom the objection has been raised, on the ? record minutes in writing which have been raised, have no record of these proceedings to say that they do not feel embarrassed in sitting to ??????????? hear this proceeding. The objection based purely on conjectures is, therefore, in our view, unwarranted. The Judges concerned are fully conscious of their own responsibilities There is nothing to show that they are in any way disqualified from sitting to hear this reference. The objection is, accordingly, overruled. ??????

In this connection it must also be pointed out that in the case of President v. Shaukat Ali PLD 1971 SC 585 a similar objection taken before the Supreme Judicial Council on the ground that Council was disqualified from hearing the reference by reason of having earlier scrutinised the declaration of assets of the respondent. The Supreme Judicial Council took the view that since there was no complaint of any personal bias in any individual member of the Council and there was no allegation that any member of the Council was, in any way, hostile or inimically disposed towards the respondent, the objection was untenable.

To quote the actual words used by the Supreme Judicial Council in its report published co nomine President v. Shaukat Ali PLD 1971 SC 585:-

'The mere assertion of bias can never be sufficient to disqualify a Judge in hearing a cause or matter. In the absence of any pecuniary or proprietary interest in the subject-matter of the proceeding, it is essential that a real likelihood of bias must be shown. The mere fact that the Council had scrutinised the declaration of assets is not sufficient ? establish such likelihood of bias, for, if it were so, then no Judge, who issues a rule in a motion or issues a notice to show cause in any other proceeding or frame a charge in a trial, can ever hear that matter or conduct that trial.

If bias has to be alleged against a judge of a superior Court it must be done within great care and caution, because, such a plea of bias necessarily involves criticism of a Judge of a superior. Court and brings the person raising the plea 'within the range of the contempt jurisdiction unless it can be totally justified on factual grounds, the onus of establishing which lies exclusively on him', as observed by Cornelius, C.J., in his judgment in the case of M.H. Khondkar v. State PLD 1966 SC 140: 'Mere apprehension' said the learned Chief Justice, 'in the mind of a litigant that he may not get justice, such as is based on inferences drawn from circumstantial indications, will not justify the raising of the plea. The acts adduced must be such that the conclusion of bias must follow necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a superior Court and consequently should tie fail to satisfy the requisite standard, he may be found in contempt'.

In same case, S.A. Rahman, J., observed that:-

'The only species of bias in a Judge of a superior Court that can be pleaded, with immunity from proceedings in contempt, is that by which the Judge is disqualified from acting by reason of such identity of interest with a party as makes him a Judge in his own cause.'

Kaikaus, J., emphasised that:-

'It is essential for the administration of justice that Judges of superior Courts be absolutely protected from attack, for, otherwise it would be difficult for them to function at all.'

Again in this case of Syed Akhlaque Hussain v. Pakistan PLD 1969 SC 201 where the petitioner, a Judge of a High Court, sought to have the judgment and order of a Bench of this Court, conducting the enquiry against him reviewed and set aside on the ground that the then Chief Justice, for the reasons given by him in his petition, became hostile to him and took personal interest in getting the special reference made to the Supreme Court. The learned Chief Justice was, therefore, disqualified to sit on the Bench which enquired into the charges against him. Strong reliance in the case was placed by the petitioner on the observations of Lord Hewart, C.J., in the case of Rex v. Sussex Justices Ex parte: McCexly (1924) 1 QB 256, 259 to the effect that it is of fundamental importance that justice should not only be done. but should manifestly and undoubtedly be seen to be done'.

This Court observed as follows:

'It is true that this proposition has been generally acknowledged and given effect to not only in England and U.S.A. but in this sub-continent too. The question that remains, however; to be considered is what interest in a judicial or quasi-judicial proceedings does the law require as sufficient to incapacitate a person from adjudicating on the ground of bias. According to Mr. Akhlaque Hussain mere suspicion or reasonable suspicion of bias is sufficient to vitiate a decision. In the case of Reg v. Rand L R (1866) 1 Q B 230 Blackburn, J. said that there must be 'a real likelihood' of bias. In the recent case of Regime v. Camborne Justices and another, Ex parte: Pearce (1955) 1 Q B 41 Slade, J., has said:-

In the judgment of this Court the right test is that prescribed by Blackburn, J., namely, that to disqualify a person from acting in a judicial or quasi judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceedings, a real likelihood of bias must be shown'.'

The learned Judge then observed:

'Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this Court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done. " (Underlining is ours)

Accepting this principle, this Court concluded:-

' We are, therefore, of the view that mere suspicion of bias, even if it is not unreasonable, is not sufficient to render a decision void. A real likelihood of bias must be established.'

The present case is also a case of mere suspicion as no facts have been placed on record to show any real likelihood of bias."

The last-mentioned case (Federation of Pakistan v. Muhammad Akram), was a review petition arising out of the judgment of this Court reported as federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166). h case which was disposed of by this Court through a short order dated X88 and detailed reasons for the short order were released on 9-3-1989. Tease of the detailed reasons in Saifullah's case the Federal Government of Pakistan, Ministry of Law, Justice and Parliamentary Affairs issued a press release on 10-3-1989 which inter alia contained the following directive.

"Consequently the actions taken, orders passed or appointments made after 29th May, 1988 up to 2nd December, 1988 by the President which were required to be taken, passed or made on the advice of the Prime Minister were illegal. Such actions, orders and appointments have to be regularised in accordance with the provisions of the Constitution and therefore all Government Offices, Departments, the Registrars of the High Courts and Supreme Court are requested immediately to contact the Ministry of Law and Justice with regard to such actions, orders and appointments taken, passed or made by or in the name of the President from 29th May to 2nd December, 1988 so that these are regularised by taking appropriate steps in accordance with the Constitution in the light of the judgment of the Supreme Court. It is further advised that all such appointees may suspend the performance of their official duties till their appointments are regularised or reaffirmed by the President on the advice of the Prime Minister. Certain legislative measures may also be required to be taken after carefully considering the implications of the judgment of the Supreme Court."

On issue of the above directive by the Government Mr. Muhammad Akram Shaikh, an Advocate of this Court sought clarification of the judgment of this Court in Saifullah's case, which was allowed on 18-3-1989. The Federal Government then filed a review petition seeking review of the order dated 18-3-1989. During tendency of the review petition a miscellaneous application was filed by the Federal Government with the prayer that three Hon'ble Judges, who were affected by the judgment of the Court dated 9-3-1988, may not participate in the adjudication of the review petition. The majority opinion in the review case was recorded by Shafiur Rahman, J. with which Muhammad Haleem, C.J., Muhammad Afzal Zullah, Nasim Hasan Shah, Javaid Iqbal, Ghulam Mujaddid, Saad Saood Jan, Usman Ali Shah, Ali Hussain Qazilbash and Naimuddin, JJ. agreed. Aslam Riaz Hussain and Abdul Kadir, JJ. the two other learned members of that Bench recorded their separate dissenting notes. Shafiur Rahman, J. while summing up the discussion on the question of disqualification of a Judge to act in a case on account of pecuniary interest or bias observed as follows:-

(i) ???????? "It is fundamental principle that in the absence of statutory authority or consensual agreement or the operation of necessity no man can be Judge in his own cause." (Halsbury Laws of England -- Fourth Edition, Volume, para. 67);

(ii) ??????? "A Judge who would otherwise be disqualified may act in a case of necessity where no other Judge has jurisdiction. That the ' necessity' rule is a part of the common law is undoubted." (Natural Justice by Marshall 1959 Edition, page 38);

(iii) ?????? 'The rule of disqualification must yield to the demands of necessity, and a Judge or an Officer exercising judicial functions may act in a proceeding wherein he is disqualified even by interest, relationship or the like, if his jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would destroy the only Tribunal in which relief could be had and thus, prevent a termination of the proceeding' (vide American Jurisprudence, Vol. 30, page 770) (quoted in the President v Mr. Justice Shaukat Ali PLD 1971 SC 585 at p. 606);

(iv) ?????? 'An Adjudicator who is subject to disqualification at common law may be required to sit if there is no other competent Tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice. So, if proceedings were brought against all the superior Judges, they would have to sit as Judges in their own cause. Similarly, a Judge may be obliged to hear a case in which he has a pecuniary interest.' De-Smith's Judicial Review of Administrative Action (Fourth Edition), 1980, Vol. p. 276."

66. From the preceding discussion, it clearly emerges that a disqualification to hear a case would arise only where a Judge hearing the case is shown to have a personal interest or a pecuniary interest, however, small it may be, in the subject-matter of the case before him. However, if the Judge so disqualified has the exclusive jurisdiction in the matter and there is no other competent Tribunal or Court available to hear the case, or the quorum for hearing of the case cannot be formed without the presence of the Judge so disqualified, then in such circumstances, in spite of the above disqualifications, he can sit and hear the case on the doctrine of necessity to prevent the failure of justice and to save the only Tribunal available for relief from being rendered ineffective. In all other cases, where general bias or disqualification is alleged against a Judge of the superior Court, it is left to him alone to decide whether he would like to hear a particular case before him or not. The respondent No. 2 has neither alleged nor brought any material on record to show that the above mentioned six Judges of the Bench carried any personal bias or grudge against him. It may incidentally be mentioned here that respondent No. 2, himself issued the new roster of sitting of the Judges on 1st of December, 1997, in which the above cases were listed for hearing before a Bench of seven Judges which included all the six Judges whose presence on the Bench is now objected to by Mr. Abdul Hafeez Pirzada. If there was any truth in the allegation that these six Judges were biased against respondent No. 2, they were not expected to be included on the Bench constituted by respondent No. 2. It needs no mention that as Judges of the Supreme Court, they are expected to be fully aware and conscious of their oath of office and the Code of Conduct signed by them which enjoins on them to decide all matters coming before them according to law, without fear or favour; affection or ill-will. All the six Judges whose presence on the Bench is objected to by respondent No. 2, have unequivocally expressed that they do not feel any embarrassment in hearing and deciding these cases. We, therefore, find no merit in the objection of Mr. Abdul Hafeez Pirzada that the above mentioned six Judges are disqualified from sitting on the Bench and hearing these cases.

67. Mr. Abdul Hafeez Pirzada next contended that on account of bar contained in clause (5) of Article 199 of the Constitution, no order in the nature of any writ could be issued against a Judge of the High Court or the Supreme Court, muchless against the Chief Justice of Pakistan. The learned counsel in support of his contention relied on the definition of 'person' given in clause (5) of Article 199 (ibid). Article 199 of the Constitution reads as follows:-

"199.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law:-

(a) ??????? On the application of any aggrieved party, make an order--

(i) ???????? directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required to do; or

(ii) ??????? declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) ??????? On the application of any person, make on order--

(i) ???????? directing that person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) ??????? requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or

(c) ??????? On the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11.

(2) ??????? Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11 shall not be abridged.

(3) ??????? An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces o1 Pakistan, or as a person subject to such law.

(4) ??????? Where ---

(a) ??????? an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and

(b) ??????? the marking of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State Property or of impeding the assessment of collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order-

(i) ???????? would not have such effect as aforesaid; or

(ii) ??????? would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.

(4-A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State Property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier.

(4-B)Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded.

(5) ??????? In this Article, unless the context otherwise requires,-- 'person' includes anybody politic or corporate any authority of or under the control of the Federal Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and 'Prescribed law officer' means---

(a) ??????? in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and

(b) ??????? in any other case the Advocate-General for the Province in which the application is made. "

68. The learned counsel argued that as ' Supreme Court' and 'High Court' are specifically excluded from the definition of 'person' no order, declaration or direction in terms of sub-clauses (a), (b) and (c) of clause (1) of Article 199 could be issued against them. The learned counsel further argued that Judges of High Court and Supreme Court are identified by their respective Courts and they form integral part of that Court. A Court, therefore, cannot exist without a Judge and a Judge has no existence apart from the Court, argued Mr. Abdul Hafeez Pirzada. On these premises, Mr. Pirzada, the learned counsel for respondent No. 2, submitted that no order, declaration or direction could be issued against a Judge of the superior Courts in terms of sub-clauses (a), (bl and (c) of clause (1) of Article 199 of the Constitution in view of the bar contained in clause (5) of Article 199 of the Constitution. In support of his contention, Mr. Abdul Hafeez Pirzada relied on the cases of Jamal Shah v. Election Commission (PLD 1966 SC 1), Abrar Hassan v. Government of Sindh (PLD 1976 SC 315) and observations of Abdul Kadir Shaikh, J. in Federation of Pakistan v. Muhammad Akmrn Shaikh (PLD 1989 SC 689)

69. The first noted case was a certificated appeal arising from the judgment of the High Court of Lahore, deciding an election dispute in a petition filed under Article 98 of the Constitution of 1962. The main controversy in the case was whether the High Court could entertain a dispute relating to election to exercise of its jurisdiction under Article 98 of the Constitution of 1962 when a remedy for resolution of such dispute was specifically provided under Article t71 of the Constitution. It appears that while the case was argued before the High Court a contention was raised that the Election Commission consisted of members who had the status of the Judges of the High Court and particular in the order impugned before the High Court was passed by the member who was a Judge of the High Court. It was, accordingly, contended before the High Court that a writ could not be issued to a Judge of the superior Curt. The High Court, however, did not agree with the contention and held that a Judge of the High Court while acting as member of Flection Commission, does not act in his capacity as a Judge of the High Court but acts as persona designata and as such his orders were amenable to the jurisdiction of High Court under Article 98 of the Constitution of 196. Cornelius, C.J. while examining this aspect of the case observed as follows:

"The learned Judges were in all probability right in, considering the Member to be persona designata, and not the High Court or a Judge of the High Court, when acting under section 53, but one may be pardoned for referring here to a small observation in one of the judgments cited by the Full Bench with reference to the idea of superior Court issuing a writ to itself, viz:- 'the process involves the rather ludicrous position that Judges are called upon themselves to show cause to themselves'. "

Why their orders should not be quashed, in the present case, the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of say two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of 'ludicrousness' might arise if a writ were sought from a Single Judge of the High Court to avoid action by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of 'ludicrousness' there are other and mere weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the superior Courts, which could be urged in support of such a provision. "

70. Mr. Abdul Hafeez Pirzada specifically relied on the above-quoted observations of Cornelius, C.J. in the above case to support his argument that issuance of a writ is completely barred against the Judges of the superior Courts. With greatest respect, we may point out that the above-quoted observations of Cornelius, C.J. were not shared by the other Members of the Bench which decided Jamal Shah's case (supra). The Bench consisted of besides Cornelius, S.A. Rahman, Fazl-e-Akbar, B.Z. Kaikaus and Muhammad Yaqub Ali, JJ. Each learned Member of the Bench expressed his opinion in this regard through separately recorded notes. S.A. Rahman, J. expressed on the controversy as follow:

"I agree but I would like to add that the instant case is one in which the learned Member of the Election Commission has acted within the limits of his jurisdiction in rendering the decision that he did and that he did not fail to exercise the jurisdiction vested in him by law. If in a particular case, it is found either that an authority functioning under section 53 of the National and Provincial Assemblies Act, 1964 or an Election Tribunal appointed under that Act has either failed to exercise jurisdiction vested in it or clearly exceeds that jurisdiction or if the order in question is found to be tainted with mala fides, the aggrieved party may be entitled to invoke the provisions of Article 98 of the Constitution to obtain appropriate relief, of course within the limited scope of the power given by that Article in view of the exclusive jurisdiction of the Authorities concerned. In such an eventuality the impugned order could not be said to fall, within the four comers of the exclusive law and would not, therefore, be immune from challenge, if it is brought up for examination by the High Court at the appropriate stage. "

Fazl-e-Akbar, J. expressed his opinion in these words:-

"I agree with the conclusions at which my lord the Chief Justice has arrived and have nothing to add to the reasons which have been stated with such fulness. I would only add that ordinarily the Court in exercise of its writ jurisdiction would decline to interfere in cases of Election. It, however, cannot be said that the writ jurisdiction of the Court cannot be at all attracted in such cases. As pointed out by this Court in the case Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382, actions of the Election Authorities can always be called in question if they are characterised as being done mala fide or in bad faith. In the present case, however, there was no allegation of mala fide or bad faith on the part of the Election Authorities."

B.Z. Kaikaus, J. after lengthy discussion concluded as follows:-

"While I would not be prepared to accept that the High Court has jurisdiction under Article 98 to correct all errors of law relating to the merits of a dispute before a Tribunal I should not be understood as holding that a failure on the part of the Tribunal to properly apply its mind to a question of law arising before it is beyond the scope of Article 98. There may be error apparent on the face of the record which may be due to an oversight; or the Tribunal may not have properly applied its mind to an aspect of the matter before it. There is a duty cast on every judicial Tribunal to properly apply its mind to questions of fact and of law. If there be any failure in the proper application of the mind the High Court can always quash the order and direct that the case be decided afresh in accordance with law. The High Court cannot however itself determine the merits of a dispute before the Tribunal. That has to be done by the Tribunal. "

The observations of Justice Yaqub Ali on the controversy was as follows:

"With due respect to the learned Judges, the rule has no application in the present case because, on the view expressed above, the superior Courts in this country; except for a short period when the 1956 Constitution remained in force, were never vested with the jurisdiction to interfere with election disputes. The distinction between sub clauses (a) and (b) of Article 171(1) and clauses (2) and (3), relied upon by the learned Judges of the High Court, is real but not with the effect which they have attached to it. Clauses (2) and (3) provide an absolute bar and the words 'in any manner' and 'the Court or authority whatsoever' achieve this end, while under Article 171(1) the determinations of the initial Authorities designated in it are subject to appeal in certain cases, and to the decisions of Election Tribunals it others made immune only from the incidence of the supervisory jurisdiction of a High Court under Article 98 of the Constitution. But i1 the Authority refuses to exercise jurisdiction conferred on it by Act VII of 1964, or acts in clear violation of its mandatory provisions, the High Court may direct the Authority to do that which the law requires him to do or refrain from doing that which the law does not permit him to do. The exercise of this power which is in the nature of issuing a writ of mandamus or prohibition is different from declaring an act done or proceeding taken to be without lawful authority and of no legal effect. An act done or proceeding taken would be with lawful authority if the person performing the functions is invested with the necessary capacity and the conditions for the exercise of the authority are substantially complied with except where there be found disqualification by bias or fraud or malice which will be destructive of all power under law. The Authorities designated in Article 171(1) are, thus, the final Judges of facts as well as of law, including the interpretation of law and, with due respect, it would be incorrect to say that their determinations are 'without lawful authority' because the High Court does not agree with them. In this view, I would hold that on the facts of the instant case the High Court had no jurisdiction to interfere with the impugned order of the learned Member of the Commission."

71. The second case relied by Mr. Abdul Hafeez Pirzada, was also a certificated appeal arising from the order of a Division Bench of the High Court of Sindh and Balochistan dismissing a Constitutional petition wherein appointment of Mr. Justice Abdul Kadir Shaikh, a permanent Judge of the Supreme Court, as the Chief Justice of Sindh High Court was challenged. The Bench of this Court which heard the above appeal consisted of Muhammad Yaqub Ali, C.J., Salahuddin, Anwarul Haq and Muhamrnad Gul, JJ. All the four Members of the learned Bench were unanimous in their opinion that the order of President appointing the Chief Justice of the High. Court was not immune from attack in a Court of Law as the immunity conferred by Article 248(1) of the Constitution extends only to the person of President, a Governor, Prime Minister etc. and not to any action taken or order passed by them. However, on the question of nature of proceedings which can be filed to challenge the appointment of a Judge of the superior Court, the learned Judges of the Bench were equally divided. Yaqub Ali, C.J. and Anwarul Haq, J. were of the view that no petition under Article 199 of the Constitution could be brought to call in question the appointment of a Judge of the superior Court in view of the bar contained in clause (5) of Article 199 of the Constitution. However, both the learned Members of the Bench were further of the view that in a properly constituted proceedings the appointment of a Judge of the superior Court could be collaterally challenged. The other two learned Members of the Bench, Justice Salahuddin Ahmad and Justice Muhammad Gul, however, held that proceedings in the nature of quo warranto could be filed against the Judge of a superior Court under Article 199 of the Constitution to challenge the legality of his appointment. Abrar Hassan's case (supra), has an important bearing on the controversy raised in the above cases, and therefore, we would examine this case in some detail. Mr. Abdul Hafeez Pirzada relied on the following observations from the judgment of Muhammad Yaqub Ali, C.J. which supported his contention:-

"In consonance with this historical background, Judges of the Supreme Court and High Courts were, in the 1956 Constitution, excluded from the definition of 'Service of Pakistan.' In the Constitution of 1962, a departure was made and the Judges of superior Courts were not specifically excluded and this pattern has been followed in the 1973 Constitution. This, however, does not affect the legal status of Judges. So long as Judges of superior Courts act as interpreters of law and Constitution and decide disputes not only between citizen and citizen, but also between citizens and State and exercise the power to strike down actions of the State as without lawful authority, they do not fall in the category of agents and servants of the State to whom writs issue under Article 199. In my view clause (5) of Article 199 is enacted to achieve this object.

Another reason why writs should not issue from one High Court to another High Court and from one Judge to another Judge of the same High Court is that such a course will destroy the traditional high degree of comity among the Judges of superior Courts which is essential for the smooth and harmonious working of the superior Courts. Observations to this effect will be found in the judgment delivered by the Court in Mian Jamal Shah v. The Member, Election Commission and others. This is one of the cases on which Mr. Mumtaz. Hassan relied in the course of his address. The respect and amity which the Judges should extend to each other will certainly be diminished if they were to issue writs to each other.

Lastly, as I read the provisions of Article 199, they spell out that a writ will not issue from one Judge of a High Court to another Judge of the same Court. Article 199 (1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local Authority. A High Court cannot, therefore, issue a writ to a person performing functions in another province. This restriction applies equally in case of High Courts as the Judges who constitute these Courts perform their functions outside the territorial jurisdiction of each other. The exclusion of High Court from the definition of 'person' is, therefore, not intended to debar a High Court from issuing writs to other High Courts. This object is fully served by the primary condition laid down in Article 199 (1). What then is the purpose of clause (5) of Article 199. Obviously, not to debar a High Court from issuing a writ to itself. It is too absurd to contemplate that a writ could ever issue from the 'High Court of Lahore' to the' High Court of Lahore'. A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants, under Article 199 as without lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection one should bear in mind large number of decisions given by High Courts in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation Authorities, Custodian of Evacuee Property, Settlement Authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Courts to quash, under Article 199, judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude Judges from the term High Court and Supreme Court in clause (5) of Article 199.

I, however, do not mean to say that if a Judge has reached the age of superannuation or is otherwise not qualified to hold the office of a Judge of a superior Court, there is no remedy at law against him. His capacity to hold the office can be questioned in proper proceedings, but not by a writ under Article 199 of the Constitution. The judgment delivered by a Judge who is not qualified to hold the office may be brought before this Court on the ground that it is not a judgment delivered by the High Court or it may be challenged on the ground that the High Court is not properly constituted because a judgeship is vacant. "

72. To the similar effect were the observations of Anwarul Haq, J. in Abrar Hassan's case (supra):-

"On behalf of the appellant it was submitted that the need for preserving comity among the Judges of the superior Courts could at best be described as a principle of law, which could not be permitted to derogate from the true meaning of the relevant Constitutional provision. ????????????

The reply to this argument appears to me to be two-fold:--

That the principle in question is being invoked only as an aid to interpretation, by explaining the purpose underlying the exclusion of the High Courts and the Supreme Court from the definition of 'person' as given in paragraph (5) of Article 199 of the Constitution, and not in derogation of the true meaning of the said provision; and

(b) ??????? That if effect is to be given to the other principle prohibiting a challenge to the position of a de facto Judge in collateral proceedings, ????? then considerations underlying that principle ought to be weighed and considered side by side with the imperatives of maintaining comity among the Judges of the superior Courts, a requirement essentially in the public interest and not for the benefit of the Judges themselves.

The observations made by Cornelius, C.J., which reference was made by the learned Attorney-General are indeed highly relevant in this behalf. It is interesting to note that these considerations were recently highlighted by a Full Bench of the Lahore High Court, consisting of seven Judges, in Mujibur Rehman Shami v. A Judge of the High Court PLD 1973 Lah. 778, while examining the question whether a petition for contempt of the High Court could be maintained against a Judge of that Court itself. The learned Judges concluded that such a petition could not be maintained as besides other considerations, it would be ?????????? destructive of the traditional respect and comity existing among the Judges of the superior Courts.

Taking, therefore, a comprehensive view of the matter, I am in respectful agreement with his lordship the Chief Justice that the bar contained in paragraph (5) of Article 199 applies to the issuance of writs in respect of all orders: actions and acts of a High Court or the Supreme Court, and the Judges thereof in the exercise of their functions as such Judges, and also to any proceedings which seek to restrain them from performing their judicial functions or holding their offices as such. The bar, however, does not apply to matters concerning the Judges of these Courts in their private or individual capacities, which continue to be governed by the laws of the land as in the case of other citizens. "

73. We now turn to the views expressed by the other two learned Judges of the Bench Justice Salahuddin Ahmed and Justice Muhammad Gul in Abrar ????????? Hassan's case (supra), Muhammad Gul, J. on the question of maintainability of a petition to challenge the validity of the appointment of a Judge of superior Court, observed as follows:--

"In my humble view, and I say so with great respect, that on a proper ,construction of Article 199 of the Constitution and on general principles which are well-settled, an information in the nature of quo warranto, on the allegation made in the case, does lie. This appears to be the only proper remedy against a Judge of a superior Court if by a mischance arising from an oversight or otherwise, who not being qualified or is disqualified to be a Judge, is so appointed.

Article 199 in so far as it is material to the case reads:--

"199.---(1) Subject to the Constitution, a High Court may if it is satisfied that no other adequate remedy is provided by law,--

(a) On the application of any aggrieved party, make an order--

(i) ????????????? ?????????????????????.

??????????????? ?????????????????????.

(ii) ?????????? ?????????????????????..

???????????? ??????????????????????.

(b) ??????? on the application of any person, make an order---

(i) ? ???? ???????????????????..

?????????? ???????????????????..

(ii) ??????? requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or

(iii) ???????????????? ??????????????????

?????????????????????? ??????????????????.

(iv) ????????????????????? ?????????????????..

?????????????????????? ???????????????????

(5) ??????? In, this Article, unless the context otherwise requires 'person' includes anybody politic or corporate, any authority of or under the control of the Federal Government, and any Court or Tribunal, other than the Supreme Court, a High Court or Tribunal established under a law relating to the Armed Forces of Pakistan;

????????? ????????????????????..

It is clear from a plain reading of clause (1) above, that in the cases covered by sub-clause (a) (ibid) the High Court has jurisdiction to issue a writ or order of appropriate kind 'on the application of any aggrieved person'. Sub-clause (a) provides for writs or orders in the nature of prohibition, mandamus and certiorari. In sharp contract with the opening words of sub-clause (a), as respect cases falling under sub clause (b) (ibid), the High Court has jurisdiction to issue writs or orders in the nature of habeas corpus and quo warranto on the application of any person'. In the instant case, the appellant, though himself not an aggrieved person, seeks writ of quo warranto against respondent No.2, to show under what authority he holds the office of the Chief Justice of the High Court of Sindh and Balochistan, which indubitably is a high 'public office' within the meaning of paragraph (ii) of sub-clause (b) above.

Recently in Salahuddin v. The Frontier Sugar Mills PLD 1975 SC 244 this Court had occasion to explain the reason enabling any public spirited person as distinguished from any aggrieved person to apply for a writ of quo warranto. The object is to secure 'the legality and sanctity of a public office' and not redress of individual grievance. It will also be instructive to refer to the celebrated case of R v. Speyer (1916) 1 KB 595 relied upon by the appellant's learned counsel. It was held in that case that a private relator could exhibit information for a writ of quo warranto to challenge the appointment of two Members of the Privy Council by the King. The Attorney-General (who later became Lord Birkenhead and the Lord Chancellor) and the Solicitor-General appearing for the clerk of the Privy Council and the Secretary of State for Home Affairs, raised various objections why a quo warranto would not lie in that case. The objections were repelled out of hand. Among, J. was 'surprised' that the law officers of the Crown should raise any technical objection to a decision on the legality of the two appointments on the merits, and observed that it was difficult to imagine a question 'more fit' for determination by the Court. Lord Chief Justice Reading stated: 'It would seem strange that the Court by refusing the remedy should perpetuate illegality'. This case was noticed with approval by this Court in Masudul Hassan v. Khadim Hussain PLD 1963 SC 203 In this respect the jurisdiction exercised here is similar to that exercised by the High Court in England. I will presently revert to clause (5) of Article 199 which was canvassed by the learned Attorney-General in support of the conners proposition which has found favour with My Lord the Chief Justice.

It should never be forgotten that the Constitution has set out with great particularity the qualifications for the appointment of Judges of the Superior Courts: So also the inhibitions and limitation attaching to them, while they remain and cease to be such Judges. See for instance Articles, 197, 179, 182, 193, 195, 200 and 207 of the Constitution. These provisions are vitally connected with the status, dignity and independence of the Superior' Judiciary in the country, and have not been inserted in vain. Therefore, any breach or non-observance of these provisions has always been regarded as justiciable. The cases of Joti Prokash Mitter, Adita Narain Singh and Malik Ghulam Jilani, noticed in the judgment of my lord the Chief Justice are some of the cases in point.

That the information was validly exhibited in this case, for a writ of quo warranto, also finds strong support in the statement of law in paragraph 246, American Jurisprudence, Vol. 46, noticed in the judgments of my lord the Chief Justice and my learned brother Salahuddin Ahiaad J. It stated in the paragraph that the right or title or a de facto Judge "can be determined only in quo warranto proceedings-- --- -- --- and cannot be questioned in the case before him or in a collateral proceedings". This aspect of the matter in my humble opinion stands concluded by this Court's judgment in Farzand Ali v. West Pakistan PLD 1970 SC 98. In that case the constitutionality of the Third, Fourth and the Sixth Constitutional Amendments to the 1962 Constitution was assailed on the ground that from among the members of the then National Assembly, 33 persons who voted in favour of the amendments were disqualified to be members of the National Assembly under Article 103 as it originally stood and therefore the aforesaid three Constitutional amendments, which empowered the Government, inter alia, to send Civil Servants on compulsory retirement under certain circumstances were invalid not being passed by the prescribed majority of validly elected members. Therefore, the resultant action taken by the Government against the appellants was vitiated. The counter argument on behalf of the Government was two-fold. First, that the concerned 33 persons were declared as duly elected members of the National Assembly and therefore, their membership could not be assailed on account of any disqualification suffered by them during the pre-election period otherwise than by election petitions as provided in Article 171 of that Constitution read with relevant provisions of the National and Provincial Assemblies (Elections), Act, 1964 (Act VII of 1964) (repealed). Secondly, the elections of 33 persons concerned having gone unchallenged, could not now be questioned in collateral proceedings, constituted to impugn the orders of compulsory retirement of the appellants in that case. The first part of the argument was repelled by this Court with the following observations:-

"There is no reason, why relief by way of quo warranto should not be available in a case where the remedy by way of an election petition is no longer possible or is not the appropriate remedy or the disqualification is a continuing one which debars a person not only from being elected to an office but also from holding that office."

The second limb of the argument was however, accepted with the following observation:-

"There is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98(2)(b) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interests may have been affected by the legislative measures enacted in the meantime."

The conclusion in the second part of argument rested on the legal maxim "that the acts of officers de facto cannot be questioned collaterally". See Colly's Constitutional Limitations, 8th Edition, Part 2 at page 1357. The rationale of the maxim as explained by the learned Author is to preserve "order and regularity and to prevent confusion in the conduct of public business". The principle laid down and accepted by this Court in Farzand Ali's case in my humble view extends also to the instant case.

It would now be convenient to consider whether by virtue of clause (5) which expressly excludes the Supreme Court, a High Court and a Court Martial from the definition of "persons", with a view to exempting these institutions or bodies from the writ jurisdiction of a High Court under the Article, would by implication also exempt the Judges or officers who man these Courts? It is perfectly true that there cannot exist a Court without a Judge and indeed Judges are structural components of Courts. It may also be conceded readily, that that the terms Judge and Court are often used interchangeably as synonymous. But this is not to say that the distinction between a Judge as an individual and the Court as seat of justice as an institution is completely obliterated. The two remain distinct entities, and this distinction is manifest even in the excerpt from the American Jurisprudence relied upon by the learned Attorney-General and reproduced in the judgment of my lord the Chief Justice. Generally speaking a Judge is properly identified with; the Court, in relation to something done in exercise of the jurisdiction of the Court. Otherwise his personality remains distinct and separate from the Court. As individual, he remains subject to the laws of the land like the rest of the citizenry, save when expressly exempted. Therefore, I regret to be unable to subscribe to the broad proposition canvassed by the learned Attorney-General that a Judge is to be completely identified with the Court, for the purpose of saving provisions in clause (5) of Article 199. In my humble opinion a Judge becomes synonymous with the Court only when he acts in exercise of the jurisdiction of the Court: the synonymity does not go beyond that, and the saving clause must be read as confined in relation to order or judgment by a Judge in exercise of the jurisdiction of the Court. It would, if I may say so with respect, be unreasonable to extend it to the person of the Judge completely and for all purposes. For instance, if a Judge were to illegally confine his domestic servant for misbehaviour, a writ of habeas corpus would certainly lie against the Judge. Here the act complained of is not that of a Judge but is of an incensed master who happens to be a Judge, and the exception cannot reasonably extend to such an act. If on the other hand a Judge were to try and convict his domestic servant and commit him to prison, in exercise of the jurisdiction of the High Court, he will be acting as a Court and writ of habeas corpus will not lie because of saving as clause (5)."

74. Salahuddin, J. while agreeing entirely with Muhammad Gul, J. on the question of nature of proceedings which could be filed to challenge the appointment of a Judge of superior Court, observed as follows:-

"As regards the first contention, I entirely agree with the view expressed on it by my learned brother Muhammad Gul, J. On the plain language of Article 199 (1)(b)(ii) I find no difficulty in holding that the appellant has a locus standi to maintain the petition and that the petition is maintainable against respondent No.2. Article 199(5) is no bar to the maintainability of such a petition against a Judge of a High Court in his individual capacity as distinct from his act in the capacity of a Court or as Member of the Court. It is not disputed that the office of the Chief Justice of a High Court is a public office. The relevant provisions of Article 199 of the Constitution are as follows:-

"199.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--

(a) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...

(b) on the application of any person, make an order---

(I) ????????????? .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...

?????????????????? ?????????????????..

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office:

?????????????????????????????????????????????????????????????????????????????????????????.

(5) In this Article, unless the context otherwise requires.-- ' person' includes any body politic or corporate, any authority of or under the control of the Federal Government, and any Court or Tribunal, other than the Supreme Court, a High Court or Tribunal established under a law relating to the Armed Forces of Pakistan;

(The underlinings herein are mine).

The opening words "unless the context otherwise requires" must be kept in mind while interpreting clause (5). The words "Judge of a High Court" and "a High Court" are not always synonymous or interchangeable. The following extract from 46 American 'Jurisprudence, 2nd Edn., section 3, page 98 supports this view:-

' The distinction between the term 'Judge' and the term ' Court' is often made and is well-recognized. The words are, however, often used interchangeably, and are frequently used in statutes as synonymous and convertible terms, the word 'Judge' often being used when reference is manifestly to a Court, and vice versa. In such cases, the word 'Court' has been construed to mean 'Judge' when necessary to carry into effect the legislative intent. Another example of interchangeable use of the words is that the Judge of a Court while presiding over it is, out of courtesy, called 'the Court'.'

A Court cannot exist without a Judge, and the Judge is thus an indispensable part of the Court, but he is only a part of it." (The underlinings, again are mine, and the matter underlined, here in italics, bear out my point of view).

The bar contemplated under clause (5) of the Article is, inter alia, against a High Court as such and not against a Judge of a High Court in his individual capacity apart from his function as a Court. The present petition does not seek any writ against the act or order of a Judge of a High Court as a Court, but questions his authority or right to act as such Judge. While the former is not permissible under Article 199, the latter is. It seems now well-settled that this is the only way permitted to challenge the appointment of a Judge made in contravention of the clear provisions of the Constitution laying down meticulously the qualifications of such appointment. The language of Article 199(1)(b)(ii) is plain and unambiguous, and it entitles any person to seek information in the nature of quo warranto against a person holding or purporting to hold a public office. The provisions of the Constitution are clear and need no support from decisions of any other country which either has no written Constitution, or has a written Constitution, which does not make the point clear and beyond dispute. Nevertheless, the following extract from 46 American Jurisprudence, 2nd Edn., section 246 supports the view that information in the nature of quo warranto lies in such a matter and that the validity of the appointment of such a Judge cannot be challenged it a collateral proceeding:-

'Generally, a de facto Judge's title or right to the office can be determined only in a quo warranto at suit of the sovereign, and cannot be questioned in the case before him or in a collateral proceeding. Thus, generally, his title and authority may not be questioned in a proceeding to obtain a writ of prohibition to prevent him from doing an official act, or in a suit to enjoin him from performing the duties of his office, or in a habeas corpus proceeding to procure the release of a person convicted of crime before him.'

As to the locus standi of the appellant the Constitution itself is quite clear and entitled 'any person' to make the application under Article 199(1) (b) (ii). Even in the case of an unwritten Constitution it has been held that a stranger and a member of the public acting in good faith can apply for a writ of quo warranto. Vide R. v. Speyer (1916) 1 KB 595, wherein at page 609 it has been observed that such remedy is available to private persons.

In India which had a written Constitution but which is silent on the particular point, a writ of mandamus was issued against a Chief Justice of a High Court on a Constitution petition made by a Judge of that Court. Vide Jyoti Prokash N H.K. Bose, C.J. AIR 1963 Cal. 483. This decision was later set side by the Supreme Court of India on merit, but the Supreme Court slid not stay that the petition was not maintainable

Reverting to the maintainability of the petition, Article 192 (1) is neither relevant nor affords any guidance in this matter. Take the case of a person who is not a citizen of Pakistan, appointed through inadvertence or deliberately as a Judge of a High, Court in utter disregard of the express provisions of Article 193(2), which, inter alia, provides that a person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, etc. :i is difficult to conceive that such an appointment cannot be challenged or remedied. and the mischief is allowed to be perpetuated. Or is it left to the off-chance of an aggrieved litigant questioning the particular Judge's act as manifested in the decision of his case, and thus incidentally furnishing an occasion to challenge the validity. of the Judge's appointment? The learned Attorney-General has rather bluntly said that there is no remedy against such an unconstitutional appointment. I am definitely of the opinion that such unconstitutional appointment can be challenged and remedied only by way of a Constitution petition under Article 199(1) (b) (ii) of the Constitution and not in any collateral proceeding. This view receives support though indirectly from a decision of this Court in Civil Petition for Special Leave to Appeal No. 16-P of 1974 (Malik Ghulam Jilani v. Mr. Justice Muhammad Gul). In this case, also, the appointment of a Judge of the Supreme Court was challenged on a Constitution petition, and neither the High Court nor this Court before which the matter ultimately came up for decision ever held that the petition itself was not maintainable. The mere fact that the question of the maintainability of the petition was not specifically raised in it by any party is no reason for thinking that either the High Court or this Court had not applied its mind to the question and took it for granted that the petition was maintainable. The case was, of course, decided on merit, but this does not, in any way, affect the relevance of the case on ? the point now in issue before this Court."

75. It is, therefore, quite clear that there was unanimity in the views of all the four learned Members of Bench in Abrar Hassan's case that the appointment of a Judge of superior Court could be brought under challenge before a Court. However, there was divergence of opinion on the question of nature of proceedings which could be filed to challenge such appointment. Muhammad Yaqub Ali, C.J. and Anwarul Haq, J. were of the view that a direct proceeding to challenge the appointment of a Judge of superior Court under Article 199 of the Constitution would be barred in view of the provision of clause (5) of Article 199, and therefore, such an appointment could only be challenged collaterally in a properly filed proceedings. The other two learned Members of the Bench Salahuddin Ahmed and Muhammad Gul, JJ. on the contrary held the view that such appointment could be challenged directly only through a petition under Article 199(1)(b)(ii) of the Constitution and not collaterally in other proceedings. This divergence of opinion amongst the learned Judges of the Bench in Abrar Hassan's case was the result of different interpretation of clause (5) of Article 199 of the Constitution by them. Muhammad Yaqub Ali, C.J. and Anwarul Haq, J. held that the 'Judge and 'High Court' are synonymous and interchangeable, and therefore, issue of a writ to a Judge would amount to issuance of writ to High Court which is prohibited by Article 199(5) of the Constitution. The other two learned Members of the Bench, Slahahuddin Ahmed and Muhammad Gul, JJ. while disagreeing with the above interpretation, held that a Judge and the Court are not always synonymous. According to them, the Judge is properly identified with the Court when it does something in exercise of the jurisdiction vested in it as a Court. Otherwise, its personal identity remains distinct from the Court. The point has been aptly illustrated by the learned Judges (Salahuddin Ahmed, J and Muhammad Gul, J. by citing an example where the Judge unlawfully confines his domestic servant at his house and when he convicts and sentences him to jail in a case brought before him as a Judge of the Court. In the former case, the action of the Judge will be amenable to the jurisdiction of High Court under Article 199 of the Constitution while in the latter case, it cannot be challenged under Article 199 ibid. Once again there appears to be unanimity in the views of all the learned four Members of the Bench in Abrar Hassan's case, that a Judge of a superior Court in his personal and individual capacity is not immune from the process of Court under Article 199 of the Constitution and that this immunity extends only to the acts and orders passed as a Judge of the Court or a member of the Court.

76. The dominant consideration which persuaded Muhammad Yaqub Ali, C.J. and with which Anwarul Haq, J. agreed, were stated in the opinion of Muhattimad Yaqub Ali, C.J. as follows:-

A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants under Article 199 as without, lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection one should bear in mind large number of decisions given by High Court in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation Authorities, Custodian of Evacuee Property, Settlement Authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Courts to quash, under Article 199, Judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude 'Judges from the term High Court and Supreme Court in clause (5) of Article 199.

77. With greatest respect, we may point out that the judgments delivered by a Judge or group of Judges are the functions which identify the Judge or Judges with the Court and therefore, to that extent the bar contained in clause (5) of Article 199 of the Constitution is fully attracted. The conclusions of Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hassan's case, supra, were also not different. What these two learned Members of the Bench (Salahuddin Ahmed and Muhammad Gul, (J.) in Abrar Hassan's case said was, that while the orders passed by a Judge in exercise of the jurisdiction of the Court cannot be called in; question under Article 199 of the Constitution, the acts of a Judge performed in his personal capacity did not enjoy this protection. The difference between a Judge acting as a Court and a Judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a Judge will not be answerable for wrong done by him in his individual capacity. It may be pointed out that by accepting the office of a Judge, a person does not lose his individual identity as an ordinary citizen. Therefore, while action taken or orders passed by him in the former capacity as a Judge of the Court cannot be brought under challenge, under Article 199 of the Constitution, his action as an ordinary individual will be subject to ordinary law of the land including Article 199 of the Constitution. In this view of the matter, in our humble opinion, the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hassan's case in respect of the maintainability of a petition seeking information in the nature of quo warranto against a Judge of superior Court seems to be more rational, practical and nearer to the spirit of the provision of the Constitution. A petitioner in a petition filed against a Judge of the superior Court seeking information in the nature of quo warranto, does not challenge any action or order of a Judge passed in his capacity as a Judge of the Court or a member of the Court. The qualification to hold the office of a Judge is personal to the individual and has nothing to do with his performance of duty as a Court or member of the Court. The qualifications for appointment of Judges of the superior Court are laid down meticulously in the Constitution. To possess the qualifications prescribed under the Constitution is a sine qua non for an individual to hold the office of a Judge of superior Court. Therefore, when the appointment of a Judge of superior Court is challenged on the ground that he did not possess the qualification prescribed by the Constitution, the relator is not asking the Court to strike down any of his actions which he has performed or is performing as a Judge of the superior Court but asks for examination of his personal qualification to be entitled to hold the office of the Judge of superior Court. Such an exercise, in our humble opinion, does not fall within the mischief of the provision of Article 199 (5) of the Constitution. We are, therefore, in no doubt that a petition seeking information in the nature of quo warranto lies against the Judge of a superior Court under Article 199 of the Constitution. We are further of the view that such an attack on the validity of the appointment of a Judge of a Superior Court through collateral proceeding is not a proper remedy as firstly, such occasion may or may not arise and secondly, when the appointment of a Judge is attacked collaterally in a proceeding arising from his order, he is not necessarily arrayed as a respondent in the Court and therefore, he cannot be called upon to justify his appointment. It is also to be noted that in a collateral attack, on the validity of the appointment of Judge, the proceedings are directed against the order passed by him and validity of his appointment is only challenged through a side wind, which is possible only, if the order passed by the Judge is subject to appeal, revision, review or other proceedings before a higher forum. Therefore, if the law does not permit any appeal or other proceedings against the order passed by a Judge, the occasion to challenge the validity of his appointment in collateral proceedings may not arise at all. For this reason too, we are in respectful agreement with the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ.in Abrar Hassan's case that a petition against the Judge of a superior Court seeking information in the nature of quo warranto is maintainable under Article 199 of the Constitution. This view is more rational and has the effect of advancing the remedy and suppressing the mischief. Mr. Pirzada also relied on the following observations of Abdul Kadir Shaikh,-J. in Federation of Pakistan v. Muhammad Akram Shaikh (supra) in support of his contention that a Judge of a superior Court cannot issue a writ to another Judge of the Court:-

"The prayer is founded on the glorious traditions of this Court which have always been the hallmark of the administration of justice in this country. It is in that sense that I have understood the prayer and I cannot persuade myself to agree with the observations made by my brother Shafiur Rahman, J. that 'the Federation of Pakistan by repeating such an application has manifested an attitude of intransigence insisting that its Press Release should be respected, implemented and honoured first and reconstituting the Bench which is to hear the matter and a decision should be given thereafter under its umbrella'.

However, I feel that reference is necessary to certain judicial principles which have agitated my mind. As I read the prayer made in the Miscellaneous Petition under consideration, it is indeed for a direction being issued by nine Judges of this Court constituting the Bench, to the rest three Hon'ble Judges of the Bench not to deal with and hear the main Review Petition on the ground that they would virtually be Judges in their own cause. The question therefore is whether it is proper for the Bench of this Court to deal with an application wherein such a direction is prayed for.

Now it may be noticed that the Supreme Court, as a body under the Constitution, consists of a Chief Justice and the Judges of that Court, and each Judge is vested with the judicial powers equal to any other Judge, even for that matter, the Chief Justice: There is, therefore, equal distribution of judicial power among the Judges. According to the Rules of the Court, the cases before the Court are heard and decided by a Bench consisting of not less than three Judges, to be nominated by the Chief Justice, except for certain categories of cases which may be heard and decided by a Bench of two Judges nominated by the Chief Justice. The question that has agitated my mind is whether nine out of twelve Judges of this Bench constituted by my lord the Chief Justice should deal with the prayer that nine Judges of the Bench should direct the remaining three Judges of the Bench not to participate in the hearing of the Review Petition. I may refer to a well-settled position in law that a writ under the Constitutional jurisdiction cannot be issued by a High Court to itself, or a Judge of that Court on the principle of necessity of maintaining a high degree of comity among the Judges of the superior Court. This Court highlighted this principle in the case of Mian Jamal Shah v. Election Commission (PLD 1966 S C 1). That case arose out of the judgment of a Full Bench of former High Court of West Pakistan (Lahore Bench), and one of the questions raised before the Full Bench was whether a writ under the Constitutional jurisdiction could be issued against the Election Commission which constituted of person having the status of Superior Judges, and as in particular the Member, whose order was placed before the Full Bench for judicial Review was himself a Judge of that High Court. Learned Judges of the Full Bench agreed that -no writ could issue to a superior Court and this was clearly in accordance with the direction derivable from the definitive provision of Article 98 of the Constitution of 1962 that no order under that Article shall issue to the Supreme Court or High Court. But they found that the Member was persona designata in the case and did not act as the Judge of the High Court and relying on two cases from the English jurisdiction in which it was held that certiorari could issue in respect of an order of a High Court Judge acting as a Tribunal, they came to the conclusion that the Member was 'subject to the control of the High Court under Article 98 and is amenable to an order passed by it under that Article: Dealing with this situation, Cornelius, C.J. referred to an observation in one of the judgments cited by the Full Bench with reference to the idea of a superior Court issuing a writ to itself viz., "the process. involves the rather ludicrous position that Judges are called upon themselves to show cause to themselves why their orders should not be quashed." In this behalf Cornelius, C.J. observed as under:

"In the present case, the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of say two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of 'ludicrousness' might arise if a writ were sought from a Single Judge of the High Court to avoid action by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of 'ludicrousness' there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the Superior Courts, which could be urged in support of such a provision,"

This principle was further highlighted by Muhammad Yaqub Ali, C.J. in Abrar Hassan v.. Government of Pakistan PLD 1976 SC 315 with these, observations at pages 330 and 331 as under:

"It is relevant in this connection to bear in mind that totality of the jurisdiction conferred on a High Court by Constitution and law is exercised by the individual group of Judges sitting singly or in Benches. In this context each Judge is a High Court. That explains why orders, judgments and decrees passed and summons and warrants issued under the direction of a Judge are expressed in the name of the High Court and not in the name of the individual Judge. One may also refer to Article 201 of the Constitution which lays down that any decision of the High Court shall, to the extent it decides a question of law or is based upon or enumerates a principle of law, be binding on all Courts subordinate to it. The decision rendered by the Judge of a High Court thus carries the authority conferred by Constitution and law on the High Court and not the authority of an individual Judge. To my mind these provisions of the Constitution bring out clearly that the term High Courts and Supreme Court used in clause (5) of Article 199 includes Judges of these respective Courts.

The policy of law that no writ will issue to a High Court and Supreme Court is based on sound principles. If one Judge of a High Court were to issue a writ to another Judge under Article 199, the Judge to whom the writ is issued, may in exercise of the same jurisdiction nullify the writ. This is logical consequence of the fact that High Courts and their individual groups of Judges are invested with coordinate jurisdiction."

With reference to historical background and practice of British Courts, from which writ jurisdiction was borrowed, Muhammad Yaqub Ali, C.J. gave several reasons why writs do not lie against the Judges of superior Courts, and finally observed as under at pages 332. and 333:

In consonance with this historical background, Judges of the Supreme Court and High Courts were, in the 1956 Constitution, excluded from the definition of 'service of Pakistan.' In the Constitution of 1962, a departure was made and the Judges of superior Courts were not specifically excluded and this pattern has been followed in the 1973 Constitution. This, however, does not affect the legal status of Judges. So long as Judges of superior Courts act as interpreters of law and Constitution and decide disputes not only between citizen and citizen, but also between citizens and State and exercise the power to strike down actions of the State as without lawful authority, they do not fall in the category of agents and servants of the State to whom writs may issue under Article 199. .In my view, clause (5) of Article 199 is enacted to achieve this object. .

Another reason why writs should not issue from one High Court to another High Court and from one Judge to another Judge of the same High Court is that such a course will destroy the traditional high degree of comity among the Judges of superior Courts which is essential for the smooth and harmonious working of the superior Courts. Observations to this effect will be found in the judgment delivered by the Court in Mian Jamal Shah v. The Member, Election Commission and others. This is one of the cases on which Mr. Mumtaz Hassan relied in the course of his address. The respect and amity which the Judges should extend to each other will certainly be diminished if they were to issue writs to each other.

Lastly, as I read the provisions of Article 199, they spell out that a writ will not issue from one Judge of a High Court to another Judge of the same Court. Article 199(1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local authority. A High Court cannot therefore issue a writ to a person performing functions in another Province. This restriction applies equally in case of High Courts as the Judges who constitute these Courts perform their functions outside the territorial jurisdiction of each other. The exclusion of High Court from the definition of 'person' is, therefore, not intended to debar a High Court from issuing writs to other High Courts. This object is fully served by the primary condition laid down in Article 199 (1). What then is the purpose of clause (5) of Article 199. Obviously, not to debar a High Court from issuing a writ to itself. It is too absurd to contemplate that a writ could ever issue from the 'High Court of Lahore' to the 'High Court of Lahore'. A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants, under ,Article 199 as without lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection one should bear in mind large number of decisions given by High Courts in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation Authorities, Custodian of Evacuee Property, Settlement Authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Courts to quash, under Article 199, judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude 'Judges' from the term High Court and Supreme Court in clause (5) of Article 199.

I, however, do not mean to say that if a Judge has reached the age of superannuation or is otherwise not qualified to hold the office of a Judge of a superior Court, there is no remedy at law against him. His capacity to hold the office can be questioned in proper proceedings, but not by a writ under Article 199 of the Constitution. The judgment delivered by a Judge who is not qualified to hold the office may be brought before this Court on the ground that it is not a judgment delivered by the High Court or it may be challenged on the ground that the High Court is not properly constituted because a judgeship is vacant. "

The above views expressed by Cornelius, C.J. and Muhammad Yaqub Ali, C.J. are weighty principles of law, and I am clearly of the opinion that one set of Judges of this Bench, which has been constituted by my lord the Chief Justice, cannot issue a direction to the other set of Judges or any of the Judges of this Bench, not to associate themselves or himself in the hearing of the Review Petition. I cannot conceive of a situation where one Judge of a Division Bench constituted by my lord the Chief Justice to hear a case can direct the other Judge of the Bench not to hear the case on the ground that he has a bias or an interest in the case, or for that matter on any other ground whatsoever. If this bar were not to exist, then it would amount to permitting the Judges to destroy or take away the judicial function or power of each other, which position is neither conceived nor permitted by the Constitution.

As already held by me the prayer made in the miscellaneous petition under consideration is indeed for issue of a direction by nine Judges of this Bench to the remaining three Judges of the Bench which has been constituted by my lord the Chief Justice, not to hear the main Review Petition on the ground that they would be acting as Judges in their own cause. I have also remarked earlier that this is a very unusual prayer--in fact a unique of its kind, with no precedent as I know of--wherein some of the Judges hearing a cause or dealing with a question whether the judgment rendered by this Court to which they were the parties, has resulted in the invalidity of their own appointment to the office as Judges, and it is submitted that since this question touches upon the legality of their own appointment, they should not associate themselves with the case for the reason that they would virtually be the Judges in their own cause. The prayer is not founded on any ground of legal disqualification or incapacity attached to the three Hon'ble Judges themselves, but is based on the judicial propriety and glorious traditions of this Court to which reference has already been made, and which also find place in Article 4 of the Code of Conduct framed by the Supreme Judicial Council. that "a Judge must decline resolutely to act in a case involving his own interest" I am, therefore, clearly of the view that it is for the three Hon'ble Judges of this Bench concerned, and not the rest nine Judges of the Bench, to decide in their judicious sagacity and wisdom whether they may participate in the proceedings of the Review Petition.

I am conscious of the fact that the three Hon'ble Judges have already expressed themselves in regard to the same prayer that "they will not feel embarrassed to hear the case", which is recorded in the order of my lord the Chief Justice; dated 16-5-1989. However, since the prayer has been repeated in the Miscellaneous Petition, with the additional prayer that "if the (first) prayer is not accepted by this Hon'ble Court, the "Federal Government has instructed that the review petition may be allowed to be withdrawn, without prejudice to the contentions raised in the Review Petition", the consideration thereof has become necessary once again, for the decision of the Miscellaneous Petition.

I, therefore, dispose of the Miscellaneous Petition with these observations. "

78. The above observation of Abdul Kadir Shaikh, J. relied by Mr. Abdul Hafeez Pirzada, firstly, is not the opinion of the Court in Federation of Pakistan v. Muhammad Akram Shaikh (Supra), which is reflected in the majority judgment of Shaflur Rehman, J. Secondly, Abdul Kadir Shaikh, J: in his above observations has referred to the opinion of Cornelius, C.J. in Jamal Shah's case and Muhammad Yaqub Ali, C.J.'s observations in Abrar Hassan's case in support of his conclusion that a writ under Article 199 of the Constitution could not be issued by one Judge of the High Court to another Judge of the same Court. With greatest respect to the learned Judge, this was not the point in issue in Muhammad Akram's case. Apart from it, we have already considered in detail the observations of Cornelius, C.J. and Yaqub Ali, C.J. in Jamal Shah and Abrar Hassan's cases respectively earlier in this judgment and have not agreed with them. Lastly, the observations of Abdul Kadir Shaikh, J. quoted above also deal with the question of bias on the part of a Judge of superior Court while dealing with a case before him. These observations of Abdul Kadir Shaikh, J. did not support the contention of Mr. Abdul Hafeez Pirzada, on the question of bias dealt with earlier in this judgment and rather lend support to the view taken by us in this behalf.

79 Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No. 2 also heavily relied on the observations of Cornelius, C.J., Yaqub Ali, C.J. and Abdul Kadir Shaikh, J. in Jamai Shah, Abrar Hassan and Muhammad Akram Shaikh's cases (supra) respectively, to contend that if the principle that a Judge of superior Court cannot issue a writ to another Judge of the same Court under Article 199 of the Constitution is not strictly adhered to, it will effect and destroy the traditional comity existing between the Judges of superior Courts. Maintenance of high degree of comity between the Judges of superior Courts is neither a rule of law nor a Constitutional requirement. It is only a highly desirable tradition which has existed for long and should continue to be followed by the Judges to maintain harmony and smooth working of the Courts, and also to preserve their institutional image in the eyes of the public. However, this high tradition of maintaining comity between the Judges of superior Courts cannot come in the way of discharge of more important Constitutional duty imposed upon the Judges of the superior Courts to protect and defend the Constitution under rt,P oath of their office. Therefore, if the violation of a provision of the Constitution is brought to the notice of a Judge of the superior Court in a properly filed proceedings which involved the person of another Judge of the same Court, the relief, in the absence of a Constitutional bar, cannot be declined relying on the principle of high tradition of maintaining comity between the Judges of the superior Courts. The proceedings in the nature of quo warranto as held by Indian Supreme Court in the case of University of Mysore v. Govinda Rao (AIR 1965 SC 491) confer jurisdiction and authority on superior Courts to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. These proceedings provide a positive safeguard to citizens against usurpers of public offices, who in some cases may be allowed to continue to hold the office in connivance or with the help of the executive authority.

80. At this stage, we may also deal with another argument advanced by Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No. 2, in this behalf. Mr. Abdul Hafeez Pirzada, very vehemently argued that the only method provided under the Constitution to remove a Judge of the superior Court from his office is, to initiate proceedings against him before the Supreme Judicial Council as provided under Article 209 of the Constitution. Article 209 of the Constitution referred by the learned counsel reads as under:-

"209. (1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.

(2) ??????? The Council shall consist of--

(a) ??????? the Chief Justice of Pakistan;

(b) ??????? the two next most senior Judges of the Supreme Court; and

(c) ??????? the two most senior Chief Justices of High Courts.

Explanation. ---For the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice otherwise than as acting Chief Justice, and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts.

(3) ??????? If at any time the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then--

(a) If such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and

(b) If such member is the Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place.

(4) ??????? If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority.

(5) ??????? If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court--

(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

(b) ??????? may have been guilty of misconduct, the President shall direct the Council to inquire into the matter

(6) ??????? If, after inquiring into the matter, the Council reports to the President that it is of the opinion---

(a) ??????? that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and

(b) ??????? that he should be removed from office the President may remove the Judge from office

(7) ??????? A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.

(8) ??????? The Council shall issue a Code of Conduct to be observed by Judges of the Supreme Court and of the High Courts."

81. With due deference to the learned counsel, firstly, the right to move the Supreme Judicial Council (SJC) against a Judge of the superior Court under Article 209 of the Constitution is not available to any individual. Secondly, the President alone on the advice of Prime Minister or the Cabinet as the case may be, can refer a case of the Judge of the Superior Court to Supreme Judicial Council for holding an enquiry against him. Thirdly, the jurisdiction of "Supreme Judicial Council to hold an enquiry against the Judge of a Superior Court arises only when a reference is made to it by the President in this behalf., Fourthly, the enquiry by the Supreme Judicial Council against the Judge of a Superior Court under Article 209 ibid, is limited only to two points, namely (i) the incapacity of the Judge to perform the duties of his office properly arising from any physical or mental incapacity, and (ii) misconduct of the Judge concerned. Lastly, the findings of the Supreme Judicial Council in such an enquiry are recommendatory in nature and the action, if any, is to be taken by the President on the advice of the Prime Minister or the Cabinet. It is, therefore, quite clear that besides the fact that the Supreme Judicial Council itself cannot grant any relief to a person aggrieved by the illegal and unconstitutional appointment of. a Judge of the superior Court, the invalidity and unconstitutionality of the appointment of a Judge of superior Court are outside the purview of the enquiry under Article 209 of the Constitution, because such an appointment has no nexus either with the mental or physical incapacity of the Judge to perform properly, the duties of his office or with the misconduct of the Judge concerned. Therefore, the remedy provided under Article 209 of the Constitution cannot be equated with the proceedings filed under Article 199(1)(b) (ii) of the Constitution to challenge the unconstitutional appointment of a Judge of the superior Court. The reason for keeping the question of validity or constitutionality of the appointment of a Judge of superior Court outside the purview of the enquiry under Article 209 of the Constitution is obvious, as validity of such appointment is open to be challenged before the High Court under Article 199 of the Constitution in appropriate proceedings.

82. Another very important and distinguishing feature of these cases is that they were not filed under Article 199 of the Constitution which applied exclusively to the proceedings brought before the High Court. These cases were filed under Article 184(3) of the Constitution which confers exclusive jurisdiction on this Court. The proceedings under Article 199 of the Constitution before the High Court are subject to various constraints mentioned in the said Article. However, the proceedings before this Court under Article 184(3) of the Constitution differ in various ways from the proceedings before the High Court under Article 199 of the Constitution. For instance, a person may be non-suited by the High Court in proceedings under Article 199 of the Constitution on the ground that he has no personal grievance, and therefore, he is not an aggrieved person. A petitioner before this Court under Article 184(3) of the Constitution, may not have a personal grievance in the case, but if he satisfies the Court that question raised by him is of public importance and it relates to enforcement of fundamental rights guaranteed under the Constitution of a reasonably large section of people, he can successfully maintain the petition. The proceedings before this Court under Article 184(3) of the Constitution are in the nature of a public interest litigation in contradistinction to the proceedings before the High Court where the litigant seeks redress of his personal grievance and injury. Therefore, the scope and nature of proceedings, before this Court under Article 184(3) of the Constitution differ in many ways from the proceedings before the High Court under Article 199 of the Constitution. The trappings and constraints provided in Article 199 of the Constitution on the exercise of power by the High Court, are therefore, not applicable to this Court under Article 184(3) of the Constitution. This aspect of the case was examined by one of us (Justice Saiduzzaman Siddidqui) in the case Shahida Zaheer Abbasi v President of Pakistan (PLD 1996 SC 632), as follows:-

"The second part of the contention of learned Attorney-General relates to the application of the provisions of Article 199 (3) of the Constitution to the proceedings before this Court under Article 184 (3) of the Constitution. Article 184 (3) ibid, is as follows:-

"184.---(1) The supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.

Explanation.--In this clause, "Governments" means the Federal Government and the Provincial Governments.

(2) ??????? In exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.

(3) ??????? Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."

The learned Attorney-General contended that reference to Article 199 of the Constitution in Article 184(3) ibid, clearly indicated that this Court while exercising power under Article 184 (3) will have the same jurisdiction which the High Court possessed under Article 199 of the Constitution and, therefore, all limitations mentioned in Article 199, ibid, for exercise of power by the High Courts equally applied to this Court while dealing with a case under Article 184(3) of the Constitution. The scope of jurisdiction and exercise of power by this Court under Article 184 (3) of the Constitution had been the subject matter of consideration in a number of cases by this Court but I will refer here first to the case of Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 146 which is considered as the foundation judgment laying down the parameters within which the power and jurisdiction is exercised by this Court in public interest litigation under Article 184(3) of the Constitution. Muhammad Haleem, C.J. (as his lordship then was), who wrote the leading judgment in Benazir Bhutto's case, supra, after referring to the legislative history of Article 184 (3) of the Constitution observed as follows on the scope of Article 184 (3) ibid:-

"The opening words 'without prejudice' in Article 184 (3) mean only not affecting, saving or excepting and when read with the words following thereafter, to the provisions of Article 199' , the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two forums it wishes to invoke, and if it be the Supreme Court then the power exercisable is subject to the limitation under Article 184 (3) that is, that the element of 'public important' must be involved in the enforcement of fundamental rights. I would, however, like to make it clear that the power conferred on the Supreme Court by Article 184 (3) is distinct and has its origin in Article 22 of the 1956 Constitution and is exercisable on its own terminology. The impression, if there is, that the trappings of sub Article (1)(a) and (1)(c) of Article 19 are also to be read into this Article appears to me to be without substance as there are no words in Article 184 (3) to incorporate them except, of course, the words 'make an order of the nature mentioned in the said Article', which are specifically referable to the nature of the order in sub-Article (1)(c) of Article 199 giving such directions as may be appropriate for the enforcement of any of the Fundamental Rights. The nature of the order, however, is the end product of the Judicial power exercised. Therefore, it will not control or regulate, in any way the exercise of power so as to make it exercisable only at the instance of the aggrieved party' in the context of adversary proceedings.

The plain language of Article 184 (3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non-incorporation of sub-Article (1)(a) and (1)(c) of Article 199, the rigid notion of an 'aggrieved person' is implicit in Article 184(3) as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of Anglo-Saxon jurisprudence in which the only person wronged can initiate proceedings of a judicial nature for redress against the wrongdoer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This is destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of Constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach must receive inspiration from the trial of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2A), the Fundamental Rights and the directive principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam.

In this milieu, I am of the view that the adversary procedure where a person wronged is the main actor if it is rigidly followed, as contended by the learned Attorney-General, for enforcing the Fundamental rights, would become self-defeating as it will not then be available to provide ' access to justice to all' as this right is not only an internationally recognized human right but has also assumed Constitutional importance as it provides a broad-based remedy against the violation of human rights and also serves to promote socio-economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity i.e. national integration and social cohesion by creating an egalitarian society through a new legal order .

?????????????????????.

.. ... ... .. .... On the language of Article 184(3), it is needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights. If the Framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait-jacket, then they would have said so, but not having done that, I would not read any constraint in it. Article 184 (3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case."

Justice Abdul Kadir Shaikh, another learned Member of the Bench which decided Benazir Bhutto's case, supra, also recorded his separate observation on the scope of Article 184(3) of the Constitution, as follows:-

"My Lord the Chief Justice after a detailed discussion with historical background of the Constitutional provisions has rightly held that the language of Article 184 (3) is 'open ended', and the Framers of the Constitution did not intend any rigid or ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by an individual or a group or class of persons.

It is obvious from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situation. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the 'remedy' that makes the right real. It is often said that without 'remedy' there is no right. It is for this reason that Constitution-makers provided a long list of Fundamental Rights and the machinery for their enforcement. That, machinery is the Superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan.

Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait-jacket formula was prescribed for the enforcement of the Rights, the obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid formula or strait-jacket formula prescribed for enforcement of the Rights would be self-defeating."

From the above discussion, it is quite clear that the use of the expression "without prejudice to the provisions of Article 199" in the opening part of Article 184(3) merely indicated that the power of the High Court under Article 199 ibid was left intact and has not been affected by conferment of jurisdiction on this Court to deal directly under Article 184(3) of the Constitution with a case which involved a question of public importance relating to enforcement of Fundamental Rights guaranteed under Chapter 1 of Part II of the Constitution. The language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case. The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of this Court on its own terminology. The exercise of jurisdiction by this Court under Article 184(3) of the Constitution is not controlled by the provisions of Article 199 of the Constitution. I am, therefore, unable to agree with the contention of the learned Attorney-General that provisions of Article 199 ibid are to be read as part of Article 184(3) of the Constitution and therefore, exercise of power by this Court under the latter mentioned Article of Constitution is subject to limitation mentioned in Article 199 ibid. The jurisdiction of this Court under Article 184(3) of the Constitution arises on existence of two conditions mentioned in this Article. Firstly, that the Court considers that the matter brought before it involves a question of public importance, and secondly that it relates to enforcement of any of the Fundamental Rights guaranteed under Chapter 1, Part II of the Constitution. Apart from these two jurisdictional requirements, no other considerations are relevant for exercise of power by this Court under Article 184(3) of the Constitution. "

83. We are inclined to agree with the above interpretation regarding scope of proceedings before this Court under Article 184(3) of the -Constitution. As a necessary corollary, it follows that when this Court takes up a case for adjudication in exercise of its power under Article 184(3) of the Constitution, its jurisdiction is controlled and regulated by the terms of Article 184(3) and the trappings mentioned in Article 199 of the Constitution are not applicable to it. Therefore, while dealing with a case under Article 184(3) of the Constitution, this Court, by virtue of Article 187(1) of the Constitution, would be competent to issue direction or order which may be necessary for doing complete justice in the case.

84. It will be convenient at this stage to deal with an ancillary argument of Mr. Abdul Hafeez Pirzada in these cases. The learned counsel contended that even if it is held that proceedings for seeking information in the nature of quo warranto are maintainable against a Judge of superior Court, no interim order prohibiting or restraining the Judge from performing his functions could be granted during the tendency of the case. , While dealing with the scope of proceedings under Article 199 of the Constitution, filed against a Judge of the superior Court, we have held that the actions of the Judge which relate to the performance of his duty and functions as a Judge of the Court or as a member of the Court, cannot be brought under challenge under Article 199 of the Constitution before the High Court. Only such actions of a Judge of superior Court are amenable to the jurisdiction of High Court under Article 199 of the Constitution, which he performs in his personal capacity, having no nexus with his official functions as a Judge of the Court. We are, therefore, inclined to hold that the High Court while hearing a case against the Judge of a superior Court under Article 199 of the Constitution seeking information in the nature of quo warranto which we have held is maintainable, cannot pass any interim order restraining the Judge from performing his functions as a Judge of the Court, in view of clause (5) of Article 199 of the Constitution. However, this restraint on the power of High Court, is not applicable to this Court while hearing a case filed directly under Article 184 of the Constitution, as the power exercised by this Court under Article 184(3) of the Constitution is not subject to constraints and trappings mentioned in Article 199 of the Constitution. As discussed earlier, the proceedings before this Court under Article 184(3) of the Constitution are regulated by the terms of this Article and further vest the jurisdiction in this Court by virtue of Article 187 of the Constitution to pass any order, direction or decree which may be necessary to do complete justice in a matter before it. Therefore, in exceptional cases, this Court, while hearing a case against the Judge of superior Court wherein the legality of his appointment is challenged, may, if the circumstances of the case so demand, pass necessary order even restraining him from performing his functions as a Judge of the Court, if the dictates of justice so demanded.

85. The appointment of respondent No.2 as the Chief Justice of Pakistan was under clouds from the very inception. Besides, the protest voiced by the members of the legal profession against the appointment of respondent No.2, 'Made by superseding three senior Judges of this Court, the validity of the appointment of respondent No.2 as the Chief Justice of Pakistan was questioned within a month of his appointment in C.P.L.A. No. 161 of 1994, but the contention was overruled by a Bench presided over by respondent No.2 on technical grounds on 14-7-1994. A review petition filed in C.P.L.A. No. 161 of 1994 immediately after the dismissal of the petition was registered as C.R.P. No.79 of 1994 wherein the question regarding validity of the appointment of respondent No.2 was agitated in detail but the review petition though filed in July, 1994 could not see the light of the day and is still pending. The petition filed by Mr. Wahab-ul-Khairi, Advocate on 14-2-1995, challenging the unconstitutional appointment of respondent No.2 was made the basis of his prosecution under the Contempt of Court Act (Criminal Original No. 16 of 1995) and the contempt proceedings remained pending all these years. Similarly, contempt proceedings were drawn against senior Advocates of this Court Mr. Akram Shaikh and Dr. A. Basit for voicing their criticism against the appointment of respondent No.2 in the press and through editorial comments in a law journal respectively (Cr.Org. Petition Nos. 14, 17 and 18 of 1995). A well known columnist of a prestigious English daily, when commented on the appointment and conduct of respondent No.2, was also subject to contempt proceedings (Cr.Org. No.5 of 1995). Respondent No.2 taking advantage of his presence on the Bench as a presiding Judge, in the case of Al-Jehad Trust case did not allow the controversy regarding appointment of the Chief Justice of Pakistan, to be resolved, which is evident from the observations of Ajmal Mian, J. (as he then was) in his judgment in the President's Reference No.2 of 1996, already reproduced earlier in this judgment. The order passed by the Quetta Bench on 18-11-1997 in C.P.140-Q/96 requesting respondent No - 2 to constitute immediately a Full Court to consider the validity of his appointment as the Chief Justice of Pakistan, was also sent to cold storage. The former President of Pakistan, Farooq Ahmad Khan Leghari, after his resignation from the office of Presidency, is on record having admitted in his Press Conference, held immediately after his resignation, that the previous Government of Benazir Bhutto, after the decision of this Court in the case of AI-Jehad Trust v. Federation of Pakistan had moved for denotification of respondent No.2 as Chief Justice of Pakistan and appointment of the then senior most Judge as Chief Justice of Pakistan on the principle of seniority but he declined to sign the summary. In the same Press Conference, the former President further admitted that the present Government after being elected also moved for the denotification of the appointment of respondent No.2 as the Chief Justice of Pakistan and appointment of the most senior Judge as Chief Justice of Pakistan but he declined the request of the Government.

86. From the abovestated facts, it is quite clear that respondent No.2 was determined from, the very beginning not to allow hearing of those cases wherein validity and constitutionality of his appointment as Chief Justice of Pakistan was challenged and if per chance any of those cases was taken up for hearing, he saw to it that the Bench is presided over by him. The chances of a decision by this Court on the constitutionality of the appointment of respondent No.2 as the Chief Justice of Pakistan during the tenure of respondent No.2, therefore, appeared to be a remote possibility. It is also quite clear from the preceding discussion that the invalidity and unconstitutionality of the appointment of respondent No.2 was so manifest that it hardly required any adjudicative process to determine the same. The invalidity and unconstitutionality of the appointment of respondent No.2 as the Chief Justice of Pakistan almost became a settled proposition with the announcement of the judgment of this Court in the case of Al-Jehad Trust v. Federation of Pakistan (Judges' Case). In spite of the fact that respondent No.2 was a party to the judgment in the case of Al-Jehad Trust v. Federation of Pakistan (Judges' Case) and the unconstitutionality of his appointment as the Chief Justice of Pakistan had become so obvious, he refused to step down from the office of Chief Justice of Pakistan. The efforts made by the then Federal Government and the present Government to denotify the appointment of respondent No.2 as the Chief Justice of Pakistan after the judgment of this Court in Al-Jehad Trust v. Federation of Pakistan (Judges' Case) were frustrated by the then President of Pakistan for reasons best known to him. In these circumstances, the continuance of respondent No.2 in the office of Chief Justice of Pakistan was an obvious violation of the Constitutional provisions which needed immediate rectification by the Court.

87. In the above cases the right of respondent No.2 to hold the Office of Chief Justice of Pakistan is not only challenged by the private persons but the State has also taken a categorical stand that the appointment of respondent No.2 was made against the provisions of the Constitution. In fact the present Government as well as the previous Government tools steps to rectify this invalidity by recalling the appointment of respondent No.2 as Chief Justice of Pakistan, but as stated earlier the efforts were frustrated by the then President of Pakistan. In a case where the State challenges the right of a person to hold a public office, the burden is on the holder of the office to establish his legal right to the office. The Court in such a case can grant relief by way of injunction restraining the person from holding the office besides declaring his office vacant. Reference in this connection may be made to the following observations of this Court in the case of Masudul Hasan v. Khadim Hussain (PLD 1963 SC 203):-

It is well settled that when the writ is moved by a law officer on behalf of the State, it is for the respondent to establish his legal right to retention of the office in question. But where a private petitioner seeks the writ, the burden of proving that the respondent does not have the right to hold such office is placed upon the petitioner. On the evidence adduced before the High Court, it was clear that there was left a reasonable doubt as to the validity of the order of dismissal, and although on the face of it, it had the quality and effect of dismissing Khadim Hussain from his post, nevertheless the case was not one in which the Court would exercise its power of granting relief which is confined to-

(a) issuing an injunction to a person holding the office not to act therein, and

(b) where necessary, to declare the office to be vacant.

88. We have already held that the bar contained to clause (5) of Article 199 of the Constitution is applicable to the proceedings before the High Court under Article 199 of the Constitution and this bat does not extend to proceedings before this Court under Article 184 (3) of the Constitution. In the facts and circumstances stated above, we are of the view that the interim orders passed by the Quetta Bench on 26-11-1997 suspending the notification of respondent No.2 as Chief Justice of Pakistan which was later confirmed. by this Bench on 2-12-1997, is not open to any exception.

89. The above cases have been filed to challenge the constitutionality of the appointment of respondent No.2 as the Chief Justice of Pakistan. Mr. Abdul Hafeez Pirzada and Mr.Ghulam Hussain Abbasi, the two learned counsel defending respondent No.2 in these cases have questioned the locus standi of the petitioners to file these cases. They have also alleged mala fides on the part of petitioners in filing these cases. It is contended by the learned counsel that the grant of relief in the nature of quo warranto is discretionary with the Court and if the Court comes to the conclusion that the petitions lacked bona fides, the relief is to be refused. To support their contention, the learned counsel argued that the petitioner who filed C.P. 248-Q/97 is an unknown person whose credentials are dubious. They also contended that the Court should also take into account the timing selected by the petitioners to file the cases. It is contended that the case at Quetta was filed at the time, the respondent No.2 had taken cognizance of some very sensitive cases against the present Government. In this connection, they referred to the contempt case against the Prime Minister of Pakistan, and cases in which 13th and 14th Amendments in the Constitution are challenged. Mr. Ghulam Hussain Abbasi, one of the learned counsel, appearing for respondent No.2 also specifically referred to the request made by some of the' Judges of this Court to the Acting Chief Justice for summoning Full Court Meeting during the absence of respondent No.2 abroad and the reaction of respondent No.2 to that request and the incident which followed thereafter, in an attempt to establish the link of these cases with those incidents. We would refrain from ,making any comments on the cases relating to 13th arid 14th Amendments as they are sub judice before this Court. We would also refrain from commenting on the request made by the Judges of this Court for summoning Full Court Meeting and the reaction of respondent No.2 ! o that request as these matters relate to internal management of this Court and have no nexus with the present cases. For the present, it is enough to say that respondent No.2 has failed to bring on record any material before us to establish the possible link between these cases and the cases referred by the learned counsel in which respondent No.2 took cognizance. Similarly, the learned counsel for respondent No.2 were unable to demonstrate on the basis of material before us that the above cases had any connection or linkage with the request made by the Judges to Hon'ble Acting Chief Justice of Pakistan, during the absence of respondent No.2 abroad and the incident followed thereafter. Mere fact, the above cases were filed in the Court at a time when the above mentioned cases were going on in this Court, or the above incident had taken place is not enough to establish any mala fide on the part of petitioners in initiating these proceedings. We have already held while dealing with the objection of respondent No. 2 regarding maintainability of these petitions under Article 184(3) of the Constitution that the petitioners had the necessary locus standi to file these cases. We may further add here that the petitioners have sought information in the nature of quo warranto in these cases. Such proceedings can be initiated by any person who need not be an aggrieved person as held by Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hasan's case, supra. The learned counsel for the respondent No.2 also contended that the above cases were filed to challenge the validity of the appointment of respondent No.2 as the Chief Justice of Pakistan after he had held that office for more than three years and only few months remained in his retirement from the said office. The learned counsel, accordingly, argued that the relief in these cases should be refused on ground of laches also. Delay simpliciter is not enough to decline relief in a case where the entitlement of a person to hold a public office is challenged, because continuance of the person in the public office which he is not entitled to hold under the law, is a continuing wrong which furnishes dealt with the Reference before this Court. These objections were ,repelled by this Court as follows:-

"No specific allegations had been made against Mr. Justice Muhammad Afzal Cheema. All that was said was that since he was, before being elevated to the Bench of this Court, a Secretary in the Ministry of law and Parliamentary Affairs, Government of Pakistan, he might have. in that capacity, had occasion to deal with the question of the banning of the National Awami Party at some stage or the other, since one of the Ministers of the Government of Pakistan, who was also at one stage a Minister of Law and parliamentary Affairs, had public in stated that the question of the banning of the Party was under examination for over a period of 2/3 years, during which period Mr. Justice Muhammad Afzal Cheema was Secretary of the Ministry concerned. I must reiterate what I have said in my earlier order passed on the 16th June, 1975, that no Judge can possibly be disqualified on the ? basis of such a vague and nebulous suggestion. Mere suspicion of bias, even if it is not unreasonable is not sufficient to disqualify a Judge. In the present case, however, even the suspicion is wholly unreasonable, because, it does not necessarily follow that it is the Ministry of Law which must have examined the question of banning of the Party or that the Secretary of the Ministry had of necessity to deal with this question. Most of the witnesses who have now come before us confirm that the examination of the question of the banning of the Party was done mainly by the Ministry of Interior, Government of Pakistan and not the Ministry of Law.

So far as Mr. Justice Muhammad Gul is concerned it is said that since he has already dealt with the question of the continuance of the detention of Mr. Abdul Wali Khan and some other leaders of the National Awami Party as Chairman of the Advisory Board, constituted under clause (iv) of Article 10 of the Constitution of the Islamic Republic of Pakistan 1973 he has already dealt with the bulk of the material which forms the basis for the banning of the Party as well and, therefore he must be held to have made up his mind one way or the other and, thus, disqualified himself from sitting on the Bench. Even this I must add is a wholly untenable proposition and cannot be treated as a sufficient ground for disqualifying Mr. Justice Muhammad Gul. As pointed out by the learned editors of American Jurisprudence even 'at common law bias or prejudice on the part of a Judge not the result of interest or relationship is not supposed to exist and generally it does not incapacitate or disqualify a Judge to try a case unless the Constitution or Statute so provides' (vide American Jurisprudence, Vol. 30, page 774, paragraph 74;:

The basis of the disqualification, therefore, is 'personal bias or prejudice' of such a nature as would necessarily render a Judge unable to exercise his functions impartially in a particular case, and this must be shown as a matter of fact and not merely as a matter of opinion. In the absence of any Constitutional or statutory bar a Judge is not disqualified from sitting at a trial of a person merely because previously he had participated in other legal proceedings against the same person, whether in the capacity of a Judge or of an Administrative Tribunal or official it makes no difference. There is abundant authority from the American Jurisdiction to support the view that the mere fact that a Judge has dealt with another matter concerning the same person in another capacity does not necessarily disqualify him from sitting as a Judge at the trial of that person.

In the present case, however, even this analogy is not apt, because, before the Advisory Board, of which Mr. Justice Muhammad Gul is the Chairman, the question was as to whether the detention of Mr. Abdul Wali Khan and of some other members of the party should be continued or not. There was no question there at all of the banning of the party. To say, therefore, that because the detention of some of the persons concerned has been extended a decision has already been taken with regard to the banning of the Party is neither factually nor legally correct. There is no allegation of any personal animosity or ill-will against Mr. Justice Muhammad Gul nor has it been shown that he has any personal interest in the matter of any kind at all, nor can it be said that the personal attitude of Mr. Justice Muhammad Gul is likely to be affected in this case because of any opinion that he may have formed as the Chairman of the Advisory Board.

The decision of the questions now before us will have to be made on the basis of the evidence adduced in this Court and not on the basis of any material which might have been produced before the Advisory Board. Such an improper allegation of bias is, in my view, opposed to all cannons of decency and was least to be expected from a person who started his peroration before the Court by professing his constant endeavour to preserve the rule of law and the highest respect for law.

Cornelius, C.J. held in the case of M.H. Khondkar v. The State PLD 1966 SC 140 that 'it is open to a litigant to raise in the face of a Court an allegation of bias in that Court', whether it be a superior or a subordinate Court, but even he felt the necessity of recording the caution that 'mere apprehension in the mind of a litigant that he may not get justice such as is based on inferences drawn from circumstantial indications will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follows necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found contempt'. I subscribed to the same view then and do so even no. This Court has reaffirmed this view in its order passed on the 19th June, 1975, in this proceeding and I see no reason to depart therefrom as it appears to be based on the consensus of judicial opinion both in America and in Great Britain." (The underlining is by us).

58. In view of the above stated legal position, we are of the view that mere fact that Justice Shaikh Riaz Ahmad was at one stage associated with the case of respondent No. 2 for appointment as the Chief Justice of Pakistan, in his capacity as the Federal Law Secretary, could not debar him from hearing these cases wherein the constitutionality of the appointment of respondent No. 2 as the Chief Justice of Pakistan has been questioned. The points arising for consideration in the present cases have nothing in common with the note prepared by Justice Shaikh Riaz Ahmad, in his capacity as the Federal Law Secretary, for the Prime Minister of Pakistan, in connection with the appointment of respondent No. 2 as the Chief Justice of Pakistan. There being no element of personal bias or prejudice on the part of Justice Shaikh Riaz Ahmad against respondent No. 2, the objection raised by Mr. Abdul Hafeez Pirzada against his sitting on the Bench has no merit.

59. The presence of Justice Saiduzzaman Siddiqui, Justice Fazal Ilahi Khan, Justice Irshad Hasan Khan, Justice Nasir Aslam Zahid and Justice Khalil-urRehman Khan, on the Bench is objected to on the ground that they are biased against respondent No. 2, as they illegally entertained petitions under Article 184(3) of the Constitution at Peshawar and Quetta Registries respectively, against the provisions of Order XXV of the Rules and the express prohibition contained in the Office Order of Chief Justice of Pakistan issued in 1981 in this behalf. Respondent No. 2 has, however, not alleged any facts showing personal bias or prejudice on the part of these five Judges against him. We have already held in this judgment earlier that the entertainment of the petitions under Article 184(3) of the Constitution by the Benches working at Quetta and Peshawar was perfectly legal and valid. Therefore, the objection of Mr. Abdul Hafeez Pirzada to the extent that proceedings under Article 184(3) of the Constitution were entertained at Quetta and Peshawar respectively, illegally, loses its force. The other limb of the objection of Mr. Abdul Hafeez Pirzada is that by admitting the petitions under Article 184(3) of the Constitution, wherein appointment of respondent No. 2 as the Chief Justice of Pakistan was challenged, the above five Judges had expressed their opinion and bias against respondent No. 2, This part of the submission of Mr. Abdul Hafeez Pirzada is equally devoid of any merit. Mere fact that five of us had admitted two petitions to regular hearing at Quetta and Peshawar, respectively, wherein the validity of the appointment of respondent No. 2 as the Chief Justice of Pakistan was challenged neither amounted to the display of any bias on our part against respondent No. 2 nor it amounted to the expression of final opinion on the controversy in these cases. The fact that a petition is admitted to regular hearing by a Judge only shows that the issues raised therein required more detailed and further consideration. The opinion expressed by a Judge at that stage is only tentative in nature and not a final expression of his opinion in the case. If the above argument of Mr. Abdul Hafeez Pirzada is accepted then all those Judges who happen to grant leave to appeal in cases or admit direct petitions under Article 184(3) of the Constitution for regular hearing, will be debarred from sitting on the Benches hearing these matters finally. This is contrary to the practice followed by this Court that a matter is to be heard as far as possible by the same Bench which had earlier dealt with it. In fact in matters of review when the Judges have already finally expressed their opinion in a case, the Rule of this Court requires that the case is to be placed before the same Bench which finally decided the case. Against Justice Saiduzzaman Siddiqui, presiding over the Bench and hearing these cases, Mr. Abdul Hafeez Pirzada has raised two additional objections. Firstly, it is contended that Mr. Justice Saiduzzaman Siddiqui, has a direct personal interest in the matter as in case this Bench upheld the application of principle of seniority for appointment to the Office of Chief Justice of Pakistan, he will automatically be appointed as the Chief Justice of Pakistan in June 1999 on the retirement of Justice Ajmal Mian. The contention loses sight of the fact that Justice Saiduzzaman Siddiqui is not the senior most Judge of this Court to be benefited immediately if the rule of seniority for appointment to the Office of Chief Justice of Pakistan is upheld. The direct beneficiary in such an event will be the Justice Ajmal Mian who will take over as the Chief Justice of Pakistan and in that case Mr. Justice Sajjad Ali Shah becomes the Senior Pusine Judge to succeed Mr. Justice Ajmal Mian. Justice Saiduzzaman Siddiqui's expectancy to the Office of Chief Justice of Pakistan, in that event materializes only on the retirement of Justice Ajmal Mian and Mr. Justice Sajjad Ali Shah. It is, therefore, quite clear that Justice Saiduzzaman Siddiqui is neither a direct nor an immediate beneficiary if the rule of seniority is upheld by this Bench for appointment to the Office of Chief Justice of Pakistan in these cases. The interest of Justice Saiduzzaman Siddiqui, if any, at best will be contingent upon failure of Mr. Justice Ajmal Mian and Mr. Justice Sajjad Ali Shah to get the appointment as the Chief Justice of Pakistan. In the case of Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 SC 689), Muhammad Afzal Zullah, J. in his concurring note highlighted the interest of a Judge in a case which debarred him from hearing that case, as follows:-

"Regarding the additional submission made by the learned Attorney General after the arguments, in a written application wherein reliance was placed on clause (1) of Article IV of the Code of Conduct, suffice it to observe that the expression 'a case involving his own interest' means the direct involvement in the case which is being determined by the Court of which the Judge is a Member. The interest should not be contingent and dependent upon other cases or matters which are yet to be decided. Prima facie, therefore, the said clause is not attracted."

The objection of Mr. Abdul Hafeez Pirzada that Justice Saiduzzaman Siddiqui should not sit on the Bench as he has direct personal interest in these cases is accordingly overruled.

60. The last objection of Mr. Abdul Hafeez Pirzada to the sitting of Justice Saiduzzaman Siddiqui on the Bench is, that respondent No. 2 had asked for a Reference against Justice Saiduzzaman Siddiqui before Supreme Judicial Council on account of his alleged misconduct and therefore, he is disqualified from hearing the cases against respondent No. 2. Respondent No. 2 addressed a letter to the President of Pakistan, wherein besides highlighting the unfortunate incident of storming the Supreme Court Building by an unruly mob on 28-12-1997, he also pointed out the alleged misconduct of Justice Saiduzzaman Siddiqui, in these words:-

"I am very sorry to state that Mr. Justice Saiduzzaman Siddiqui, a Judge of this Court, who is presiding a Bench of three Judges at Peshawar Registry, has issued an administrative order constituting Full Court consisting of 15 Judges to commence sitting on 1-12-1997 for hearing of the cases at Islamabad. He has heard and decided a petition under Article 184 (3) of the Constitution which cannot be registered and heard at Peshawar Registry and can be registered and heard only at the principal seat of the Supreme Court unless so authorised by the Chief Justice. This petition was taken up for hearing without any authorisation from me and such action was also taken by two Judges, namely, Mr. Justice Irshad Hasan Khan and Mr. Justice Khalil-ur-Rehman Khan at Quetta without permission of the Chief Justice and the order was passed holding in abeyance the notification of my appointment as Chief Justice, which order has been set at night by the Bench of five Judges by majority of four to one sitting at the principal seat. Mr. Justice Saiduzzaman Siddiqui, as stated above has passed an administrative order taking over the control of the whole administration, which is the exclusive function of the Chief Justice. This divide amongst the Judges of the Supreme Court is deliberately created by interested quarters. I do not want to make any comments on the conduct and attitude motivating such actions which smack of defiance and rebellion and amount to misconduct calling for action by the Supreme Judicial Council for which necessary steps are to be taken."

61. Without making any comment on the propriety and reasonableness of the above allegations against Justice Saiduzzaman Siddiqui, one thing is absolutely clear to us that respondent No.2 was of the opinion that the entertainment of the petition at Peshawar under Article 184 (3) of the Constitution by a Bench of which Justice Saiduzzaman Siddiqui was a member and then constituting a Full Court for hearing of the said case alongwith other similar cases at the Principal Seat by the Full Court amounted to an act of ? rebellion and defiance which fell in the category of misconduct. The misconduct alleged against Justice Saiduzzaman Siddiqui by respondent No.2 was, therefore, not on account of any impropriety in his behaviour or conduct as a Judge of this Court but on account of a judicial action which respondent No.2 was of the view, was not authorised by law while Justice Saiduzzaman Siddiqui considered it valid and in accordance with the law, in the given circumstances. This misconduct alleged against Justice Saiduzzaman Siddiqui was, therefore, a debatable legal issue. The action taken by Justice Saiduzzaman Siddiqui was considered as legal and in accordance with the law by the majority of the Judges of this Court, is evident from the fact that all the Judges functioning at Lahore, Quetta, Karachi and Peshawar Registries reacted positively to the request of Justice Saiduzzaman Siddiqui to attend the Full Court sitting at the Principal Seat on 1-12-1997 as they all arrived at Islamabad to attend the Full Court Session in time, notwithstanding the roster of sitting issued by respondent No.2, which required them to continue sitting at Lahore, Karachi, Quetta and Peshawar. We have already dealt with this aspect of the case earlier in this judgment and reached the conclusion that both the actions, namely the entertainment of direct petitions at Peshawar and Quetta under Article 184(3) of the Constitution and the constitution of a Full Court by Justice Saiduzzaman Siddiqui to hear all such matters at the Principal Seat in the circumstances of the cases, was not only legal and valid but -the only way out of the impasse. In these circumstances, mere writing of a letter by respondent No.2 to President of Pakistan asking for action against Justice Saiduzzaman Siddiqui, could not create a ground debarring him from presiding over the Bench or hearing these cases. The letter written by respondent No.2 to the President of Pakistan at best shows a bias of respondent No.2 against Justice Saiduzzaman Siddiqui and not the vice versa. We, therefore, overrule the objection of Mr. Abdul Hafeez Pirzada that Justice Saiduzzaman Siddiqui should not sit on the Bench and hear these cases as respondent No.2 has made a request to President of Pakistan for a Reference to Supreme Judicial Council against him.

While still on the subject of bias on the part of a Judge of the superior Court in dealing with a case before him, we would like to refer here some very instructive observations made by this Court in this behalf in M.H. Khondkar v. State (PLD 1966 SC 140), The President of Pakistan v. Justice Shoukat Ali (PLD 1971 SC 585), Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57) and Federation of Pakistan v. Muhammad Akram (PLD 1989 SC 689). The first-mentioned case (M.H. Khondkar v. State) was an appeal before this Court arising from contempt proceedings drawn by the High Court of Dacca against a party and his counsel on the basis of allegations made against the Chief Justice of that Court and a Member of the Bench which heard his case. Cornelius, C.J. in his judgment summed up the effect, manner and extent of the plea of bias against a Judge of a superior Court as follows:-

"As a result of this somewhat lengthy examination of the facts and the law in this case, certain propositions may be laid down, which it will be of advantage to the furtherance of justice to formulate in precise terms. They may be stated as follows:-

(1) It is open to a litigant to raise in the face of a Court an allegation of bias in that Court, and this is true whether it may be a superior or a subordinate Court. If such a plea is not raised before the Court as soon as the facts tin which it is based come to the knowledge of the litigant, he may find himself barred against relief under the provisions of Article 98 of the Constitution, in respect of the ultimate decision.

(2) The plea of bias involves criticism of a superior Court in point of its capacity to do justice, confidence in which is (a) vital to the proper functioning and even to the continuous existence of the Judiciary as at present constituted, and (b) essential, therefore, to the public interest. Consequently, such an action brings the agent within the range of the contempt jurisdiction, unless it can be actually justified on factual grounds, the onus of establishing which lies exclusively on him.

(3) ??????? Mere apprehension in the mind of a litigant that he may not get justice such as is based on inferences drawn from circumstantial indications will not justify the raising of the plea The facts adduced must be such that the conclusion of bias follow necessarily therefrom On no weaker ground can any person be permitted to attack the impartiality of a superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found in contempt " (The underlining is by us) S.A. Rehman, J. who was also one of the Members of the Bench which heard M.H. Khondker's case (supra), concluded as, follows, on the plea of bias by a party against a Judge of Supreme Court:-

"In my humble opinion the only species of bias in a Judge of a Superior Court that can be pleaded with immunity from proceeding in contempt, is that by which the Judge is disqualified from acting by reason of such identity of interest with a party as makes him a judge in his own cause. Even in such a case the objection must be confined to a statement of facts on which the disqualification is based without imputing motives to the Judge concerned. It appears to me, speaking with respect that the rule was correctly laid down by the majority judgment in Anwar v. The Crown PLD 1955 . FC 185 in this regard. Dimes v. Grand Junction Canal (1852) 10 ER 758, From United Breweries Co. v. Bath Justices LR 1926 AC 586, Rex v. Sasex Justices (1924) 1 KB 256, provide illustrations of the same principle from the English jurisdiction. I am not aware of any other case in which this principle might have been extended to by a Judge of a superior Court. As was pointed out by the Privy Council in Vidyasagara v. The Queen LR 1963 AC 589 (PC), different considerations may apply where an attack is made in a Court of review on the impartiality of a lower Court. It is significant that the law does not provide for a transfer application to be moved for transferring a case from one Judge or Bench of a High Court to another on such grounds, vide In re: Sham Law Advocate AIR 1932 Lah. 502 and Israr Hussain v. Crown PLD 1954 FC 313" (The underlining is by us).

63. The second noted case (The President of Pakistan v. Mr. Justice Shaukat Ali) was a Reference to the Supreme Judicial Council by the President of Pakistan against a Judge of the erstwhile High Court of West Pakistan. The respondent in that case alleged bias against the Chairman and Members of the Council. Hamoodur Rehman, C.J. who was Chairman of the Council rejected the allegation of bias as under:-

"The second objection of the respondent is, in our view, equally untenable. There is no question here of any personal bias in any individual member of the Supreme Judicial Council, and none has been alleged which could disqualify him from participating in the proceedings under the reference now before it. There is no allegation here that any member of the Council was in any view hostile or inimically disposed towards the respondent.

The mere assertion of bias can never be sufficient to disqualify a Judge in hearing a cause or matter. In the absence of any pecuniary or proprietary interest in the subject-matter of the proceeding, it is essential that a real likelihood of bias must be shown. The mere fact that the Council had scrutinised the declaration of assets is not sufficient to establish such likelihood of bias, for, if it were so, then no Judge, who issues a rule in a motion or issues a notice to show cause in any other proceeding or frame a charge in a trial can ever hear that matter or conduct that trial. The reason is that a preliminary inquiry intended to determine whether a prima facie case has been made out or not is a safeguard against the commencement of wholly unwarranted final proceedings against a person. To say that a charge should be framed against a person amounts to saying nothing more that the person should be tried in respect of it. Anybody who knows the difference between a prima facie case and its final trial would reject the objection as misconceived. We accordingly reject them as misconceived." (The underlining is by us).

64 The third mentioned case (Islamic Republic of Pakistan Abdul Wali Khan), was also a Reference by the Federal Government against a political party under Article 7(2) of the Constitution. The respondent in that case alleged bias against the two Judges hearing that case. Dealing with the allegation of bias against the Judges, Hamoodur Rehman, C.J., observed as follows:-

"As regards the objection taken to the constitution of the Bench, learned counsel were informed on the very first day that no party to a litigation can claim the right to be tried by a particular Judge or Judges of his choice. In the case of superior Courts, it is entirely a matter for the Judge or Judges concerned to decide as to whether they will or will not sit n that particular cases. Mr Wali Khan has ? been informed that both ? the learned Judges, against whom the objection has been raised, on the ? record minutes in writing which have been raised, have no record of these proceedings to say that they do not feel embarrassed in sitting to ??????????? hear this proceeding. The objection based purely on conjectures is, therefore, in our view, unwarranted. The Judges concerned are fully conscious of their own responsibilities There is nothing to show that they are in any way disqualified from sitting to hear this reference. The objection is, accordingly, overruled. ??????

In this connection it must also be pointed out that in the case of President v. Shaukat Ali PLD 1971 SC 585 a similar objection taken before the Supreme Judicial Council on the ground that Council was disqualified from hearing the reference by reason of having earlier scrutinised the declaration of assets of the respondent. The Supreme Judicial Council took the view that since there was no complaint of any personal bias in any individual member of the Council and there was no allegation that any member of the Council was, in any way, hostile or inimically disposed towards the respondent, the objection was untenable.

To quote the actual words used by the Supreme Judicial Council in its report published co nomine President v. Shaukat Ali PLD 1971 SC 585:-

'The mere assertion of bias can never be sufficient to disqualify a Judge in hearing a cause or matter. In the absence of any pecuniary or proprietary interest in the subject-matter of the proceeding, it is essential that a real likelihood of bias must be shown. The mere fact that the Council had scrutinised the declaration of assets is not sufficient ? establish such likelihood of bias, for, if it were so, then no Judge, who issues a rule in a motion or issues a notice to show cause in any other proceeding or frame a charge in a trial, can ever hear that matter or conduct that trial.

If bias has to be alleged against a judge of a superior Court it must be done within great care and caution, because, such a plea of bias necessarily involves criticism of a Judge of a superior. Court and brings the person raising the plea 'within the range of the contempt jurisdiction unless it can be totally justified on factual grounds, the onus of establishing which lies exclusively on him', as observed by Cornelius, C.J., in his judgment in the case of M.H. Khondkar v. State PLD 1966 SC 140: 'Mere apprehension' said the learned Chief Justice, 'in the mind of a litigant that he may not get justice, such as is based on inferences drawn from circumstantial indications, will not justify the raising of the plea. The acts adduced must be such that the conclusion of bias must follow necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a superior Court and consequently should tie fail to satisfy the requisite standard, he may be found in contempt'.

In same case, S.A. Rahman, J., observed that:-

'The only species of bias in a Judge of a superior Court that can be pleaded, with immunity from proceedings in contempt, is that by which the Judge is disqualified from acting by reason of such identity of interest with a party as makes him a Judge in his own cause.'

Kaikaus, J., emphasised that:-

'It is essential for the administration of justice that Judges of superior Courts be absolutely protected from attack, for, otherwise it would be difficult for them to function at all.'

Again in this case of Syed Akhlaque Hussain v. Pakistan PLD 1969 SC 201 where the petitioner, a Judge of a High Court, sought to have the judgment and order of a Bench of this Court, conducting the enquiry against him reviewed and set aside on the ground that the then Chief Justice, for the reasons given by him in his petition, became hostile to him and took personal interest in getting the special reference made to the Supreme Court. The learned Chief Justice was, therefore, disqualified to sit on the Bench which enquired into the charges against him. Strong reliance in the case was placed by the petitioner on the observations of Lord Hewart, C.J., in the case of Rex v. Sussex Justices Ex parte: McCexly (1924) 1 QB 256, 259 to the effect that it is of fundamental importance that justice should not only be done. but should manifestly and undoubtedly be seen to be done'.

This Court observed as follows:

'It is true that this proposition has been generally acknowledged and given effect to not only in England and U.S.A. but in this sub-continent too. The question that remains, however; to be considered is what interest in a judicial or quasi-judicial proceedings does the law require as sufficient to incapacitate a person from adjudicating on the ground of bias. According to Mr. Akhlaque Hussain mere suspicion or reasonable suspicion of bias is sufficient to vitiate a decision. In the case of Reg v. Rand L R (1866) 1 Q B 230 Blackburn, J. said that there must be 'a real likelihood' of bias. In the recent case of Regime v. Camborne Justices and another, Ex parte: Pearce (1955) 1 Q B 41 Slade, J., has said:-

In the judgment of this Court the right test is that prescribed by Blackburn, J., namely, that to disqualify a person from acting in a judicial or quasi judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceedings, a real likelihood of bias must be shown'.'

The learned Judge then observed:

'Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this Court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done. " (Underlining is ours)

Accepting this principle, this Court concluded:-

' We are, therefore, of the view that mere suspicion of bias, even if it is not unreasonable, is not sufficient to render a decision void. A real likelihood of bias must be established.'

The present case is also a case of mere suspicion as no facts have been placed on record to show any real likelihood of bias."

The last-mentioned case (Federation of Pakistan v. Muhammad Akram), was a review petition arising out of the judgment of this Court reported as federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166). h case which was disposed of by this Court through a short order dated X88 and detailed reasons for the short order were released on 9-3-1989. Tease of the detailed reasons in Saifullah's case the Federal Government of Pakistan, Ministry of Law, Justice and Parliamentary Affairs issued a press release on 10-3-1989 which inter alia contained the following directive.

"Consequently the actions taken, orders passed or appointments made after 29th May, 1988 up to 2nd December, 1988 by the President which were required to be taken, passed or made on the advice of the Prime Minister were illegal. Such actions, orders and appointments have to be regularised in accordance with the provisions of the Constitution and therefore all Government Offices, Departments, the Registrars of the High Courts and Supreme Court are requested immediately to contact the Ministry of Law and Justice with regard to such actions, orders and appointments taken, passed or made by or in the name of the President from 29th May to 2nd December, 1988 so that these are regularised by taking appropriate steps in accordance with the Constitution in the light of the judgment of the Supreme Court. It is further advised that all such appointees may suspend the performance of their official duties till their appointments are regularised or reaffirmed by the President on the advice of the Prime Minister. Certain legislative measures may also be required to be taken after carefully considering the implications of the judgment of the Supreme Court."

On issue of the above directive by the Government Mr. Muhammad Akram Shaikh, an Advocate of this Court sought clarification of the judgment of this Court in Saifullah's case, which was allowed on 18-3-1989. The Federal Government then filed a review petition seeking review of the order dated 18-3-1989. During tendency of the review petition a miscellaneous application was filed by the Federal Government with the prayer that three Hon'ble Judges, who were affected by the judgment of the Court dated 9-3-1988, may not participate in the adjudication of the review petition. The majority opinion in the review case was recorded by Shafiur Rahman, J. with which Muhammad Haleem, C.J., Muhammad Afzal Zullah, Nasim Hasan Shah, Javaid Iqbal, Ghulam Mujaddid, Saad Saood Jan, Usman Ali Shah, Ali Hussain Qazilbash and Naimuddin, JJ. agreed. Aslam Riaz Hussain and Abdul Kadir, JJ. the two other learned members of that Bench recorded their separate dissenting notes. Shafiur Rahman, J. while summing up the discussion on the question of disqualification of a Judge to act in a case on account of pecuniary interest or bias observed as follows:-

(i) ???????? "It is fundamental principle that in the absence of statutory authority or consensual agreement or the operation of necessity no man can be Judge in his own cause." (Halsbury Laws of England -- Fourth Edition, Volume, para. 67);

(ii) ??????? "A Judge who would otherwise be disqualified may act in a case of necessity where no other Judge has jurisdiction. That the ' necessity' rule is a part of the common law is undoubted." (Natural Justice by Marshall 1959 Edition, page 38);

(iii) ?????? 'The rule of disqualification must yield to the demands of necessity, and a Judge or an Officer exercising judicial functions may act in a proceeding wherein he is disqualified even by interest, relationship or the like, if his jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would destroy the only Tribunal in which relief could be had and thus, prevent a termination of the proceeding' (vide American Jurisprudence, Vol. 30, page 770) (quoted in the President v Mr. Justice Shaukat Ali PLD 1971 SC 585 at p. 606);

(iv) ?????? 'An Adjudicator who is subject to disqualification at common law may be required to sit if there is no other competent Tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice. So, if proceedings were brought against all the superior Judges, they would have to sit as Judges in their own cause. Similarly, a Judge may be obliged to hear a case in which he has a pecuniary interest.' De-Smith's Judicial Review of Administrative Action (Fourth Edition), 1980, Vol. p. 276."

66. From the preceding discussion, it clearly emerges that a disqualification to hear a case would arise only where a Judge hearing the case is shown to have a personal interest or a pecuniary interest, however, small it may be, in the subject-matter of the case before him. However, if the Judge so disqualified has the exclusive jurisdiction in the matter and there is no other competent Tribunal or Court available to hear the case, or the quorum for hearing of the case cannot be formed without the presence of the Judge so disqualified, then in such circumstances, in spite of the above disqualifications, he can sit and hear the case on the doctrine of necessity to prevent the failure of justice and to save the only Tribunal available for relief from being rendered ineffective. In all other cases, where general bias or disqualification is alleged against a Judge of the superior Court, it is left to him alone to decide whether he would like to hear a particular case before him or not. The respondent No. 2 has neither alleged nor brought any material on record to show that the above mentioned six Judges of the Bench carried any personal bias or grudge against him. It may incidentally be mentioned here that respondent No. 2, himself issued the new roster of sitting of the Judges on 1st of December, 1997, in which the above cases were listed for hearing before a Bench of seven Judges which included all the six Judges whose presence on the Bench is now objected to by Mr. Abdul Hafeez Pirzada. If there was any truth in the allegation that these six Judges were biased against respondent No. 2, they were not expected to be included on the Bench constituted by respondent No. 2. It needs no mention that as Judges of the Supreme Court, they are expected to be fully aware and conscious of their oath of office and the Code of Conduct signed by them which enjoins on them to decide all matters coming before them according to law, without fear or favour; affection or ill-will. All the six Judges whose presence on the Bench is objected to by respondent No. 2, have unequivocally expressed that they do not feel any embarrassment in hearing and deciding these cases. We, therefore, find no merit in the objection of Mr. Abdul Hafeez Pirzada that the above mentioned six Judges are disqualified from sitting on the Bench and hearing these cases.

67. Mr. Abdul Hafeez Pirzada next contended that on account of bar contained in clause (5) of Article 199 of the Constitution, no order in the nature of any writ could be issued against a Judge of the High Court or the Supreme Court, muchless against the Chief Justice of Pakistan. The learned counsel in support of his contention relied on the definition of 'person' given in clause (5) of Article 199 (ibid). Article 199 of the Constitution reads as follows:-

"199.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law:-

(a) ??????? On the application of any aggrieved party, make an order--

(i) ???????? directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required to do; or

(ii) ??????? declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) ??????? On the application of any person, make on order--

(i) ???????? directing that person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) ??????? requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or

(c) ??????? On the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11.

(2) ??????? Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11 shall not be abridged.

(3) ??????? An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces o1 Pakistan, or as a person subject to such law.

(4) ??????? Where ---

(a) ??????? an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and

(b) ??????? the marking of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State Property or of impeding the assessment of collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order-

(i) ???????? would not have such effect as aforesaid; or

(ii) ??????? would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.

(4-A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State Property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier.

(4-B)Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded.

(5) ??????? In this Article, unless the context otherwise requires,-- 'person' includes anybody politic or corporate any authority of or under the control of the Federal Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and 'Prescribed law officer' means---

(a) ??????? in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and

(b) ??????? in any other case the Advocate-General for the Province in which the application is made. "

68. The learned counsel argued that as ' Supreme Court' and 'High Court' are specifically excluded from the definition of 'person' no order, declaration or direction in terms of sub-clauses (a), (b) and (c) of clause (1) of Article 199 could be issued against them. The learned counsel further argued that Judges of High Court and Supreme Court are identified by their respective Courts and they form integral part of that Court. A Court, therefore, cannot exist without a Judge and a Judge has no existence apart from the Court, argued Mr. Abdul Hafeez Pirzada. On these premises, Mr. Pirzada, the learned counsel for respondent No. 2, submitted that no order, declaration or direction could be issued against a Judge of the superior Courts in terms of sub-clauses (a), (bl and (c) of clause (1) of Article 199 of the Constitution in view of the bar contained in clause (5) of Article 199 of the Constitution. In support of his contention, Mr. Abdul Hafeez Pirzada relied on the cases of Jamal Shah v. Election Commission (PLD 1966 SC 1), Abrar Hassan v. Government of Sindh (PLD 1976 SC 315) and observations of Abdul Kadir Shaikh, J. in Federation of Pakistan v. Muhammad Akmrn Shaikh (PLD 1989 SC 689)

69. The first noted case was a certificated appeal arising from the judgment of the High Court of Lahore, deciding an election dispute in a petition filed under Article 98 of the Constitution of 1962. The main controversy in the case was whether the High Court could entertain a dispute relating to election to exercise of its jurisdiction under Article 98 of the Constitution of 1962 when a remedy for resolution of such dispute was specifically provided under Article t71 of the Constitution. It appears that while the case was argued before the High Court a contention was raised that the Election Commission consisted of members who had the status of the Judges of the High Court and particular in the order impugned before the High Court was passed by the member who was a Judge of the High Court. It was, accordingly, contended before the High Court that a writ could not be issued to a Judge of the superior Curt. The High Court, however, did not agree with the contention and held that a Judge of the High Court while acting as member of Flection Commission, does not act in his capacity as a Judge of the High Court but acts as persona designata and as such his orders were amenable to the jurisdiction of High Court under Article 98 of the Constitution of 196. Cornelius, C.J. while examining this aspect of the case observed as follows:

"The learned Judges were in all probability right in, considering the Member to be persona designata, and not the High Court or a Judge of the High Court, when acting under section 53, but one may be pardoned for referring here to a small observation in one of the judgments cited by the Full Bench with reference to the idea of superior Court issuing a writ to itself, viz:- 'the process involves the rather ludicrous position that Judges are called upon themselves to show cause to themselves'. "

Why their orders should not be quashed, in the present case, the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of say two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of 'ludicrousness' might arise if a writ were sought from a Single Judge of the High Court to avoid action by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of 'ludicrousness' there are other and mere weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the superior Courts, which could be urged in support of such a provision. "

70. Mr. Abdul Hafeez Pirzada specifically relied on the above-quoted observations of Cornelius, C.J. in the above case to support his argument that issuance of a writ is completely barred against the Judges of the superior Courts. With greatest respect, we may point out that the above-quoted observations of Cornelius, C.J. were not shared by the other Members of the Bench which decided Jamal Shah's case (supra). The Bench consisted of besides Cornelius, S.A. Rahman, Fazl-e-Akbar, B.Z. Kaikaus and Muhammad Yaqub Ali, JJ. Each learned Member of the Bench expressed his opinion in this regard through separately recorded notes. S.A. Rahman, J. expressed on the controversy as follow:

"I agree but I would like to add that the instant case is one in which the learned Member of the Election Commission has acted within the limits of his jurisdiction in rendering the decision that he did and that he did not fail to exercise the jurisdiction vested in him by law. If in a particular case, it is found either that an authority functioning under section 53 of the National and Provincial Assemblies Act, 1964 or an Election Tribunal appointed under that Act has either failed to exercise jurisdiction vested in it or clearly exceeds that jurisdiction or if the order in question is found to be tainted with mala fides, the aggrieved party may be entitled to invoke the provisions of Article 98 of the Constitution to obtain appropriate relief, of course within the limited scope of the power given by that Article in view of the exclusive jurisdiction of the Authorities concerned. In such an eventuality the impugned order could not be said to fall, within the four comers of the exclusive law and would not, therefore, be immune from challenge, if it is brought up for examination by the High Court at the appropriate stage. "

Fazl-e-Akbar, J. expressed his opinion in these words:-

"I agree with the conclusions at which my lord the Chief Justice has arrived and have nothing to add to the reasons which have been stated with such fulness. I would only add that ordinarily the Court in exercise of its writ jurisdiction would decline to interfere in cases of Election. It, however, cannot be said that the writ jurisdiction of the Court cannot be at all attracted in such cases. As pointed out by this Court in the case Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382, actions of the Election Authorities can always be called in question if they are characterised as being done mala fide or in bad faith. In the present case, however, there was no allegation of mala fide or bad faith on the part of the Election Authorities."

B.Z. Kaikaus, J. after lengthy discussion concluded as follows:-

"While I would not be prepared to accept that the High Court has jurisdiction under Article 98 to correct all errors of law relating to the merits of a dispute before a Tribunal I should not be understood as holding that a failure on the part of the Tribunal to properly apply its mind to a question of law arising before it is beyond the scope of Article 98. There may be error apparent on the face of the record which may be due to an oversight; or the Tribunal may not have properly applied its mind to an aspect of the matter before it. There is a duty cast on every judicial Tribunal to properly apply its mind to questions of fact and of law. If there be any failure in the proper application of the mind the High Court can always quash the order and direct that the case be decided afresh in accordance with law. The High Court cannot however itself determine the merits of a dispute before the Tribunal. That has to be done by the Tribunal. "

The observations of Justice Yaqub Ali on the controversy was as follows:

"With due respect to the learned Judges, the rule has no application in the present case because, on the view expressed above, the superior Courts in this country; except for a short period when the 1956 Constitution remained in force, were never vested with the jurisdiction to interfere with election disputes. The distinction between sub clauses (a) and (b) of Article 171(1) and clauses (2) and (3), relied upon by the learned Judges of the High Court, is real but not with the effect which they have attached to it. Clauses (2) and (3) provide an absolute bar and the words 'in any manner' and 'the Court or authority whatsoever' achieve this end, while under Article 171(1) the determinations of the initial Authorities designated in it are subject to appeal in certain cases, and to the decisions of Election Tribunals it others made immune only from the incidence of the supervisory jurisdiction of a High Court under Article 98 of the Constitution. But i1 the Authority refuses to exercise jurisdiction conferred on it by Act VII of 1964, or acts in clear violation of its mandatory provisions, the High Court may direct the Authority to do that which the law requires him to do or refrain from doing that which the law does not permit him to do. The exercise of this power which is in the nature of issuing a writ of mandamus or prohibition is different from declaring an act done or proceeding taken to be without lawful authority and of no legal effect. An act done or proceeding taken would be with lawful authority if the person performing the functions is invested with the necessary capacity and the conditions for the exercise of the authority are substantially complied with except where there be found disqualification by bias or fraud or malice which will be destructive of all power under law. The Authorities designated in Article 171(1) are, thus, the final Judges of facts as well as of law, including the interpretation of law and, with due respect, it would be incorrect to say that their determinations are 'without lawful authority' because the High Court does not agree with them. In this view, I would hold that on the facts of the instant case the High Court had no jurisdiction to interfere with the impugned order of the learned Member of the Commission."

71. The second case relied by Mr. Abdul Hafeez Pirzada, was also a certificated appeal arising from the order of a Division Bench of the High Court of Sindh and Balochistan dismissing a Constitutional petition wherein appointment of Mr. Justice Abdul Kadir Shaikh, a permanent Judge of the Supreme Court, as the Chief Justice of Sindh High Court was challenged. The Bench of this Court which heard the above appeal consisted of Muhammad Yaqub Ali, C.J., Salahuddin, Anwarul Haq and Muhamrnad Gul, JJ. All the four Members of the learned Bench were unanimous in their opinion that the order of President appointing the Chief Justice of the High. Court was not immune from attack in a Court of Law as the immunity conferred by Article 248(1) of the Constitution extends only to the person of President, a Governor, Prime Minister etc. and not to any action taken or order passed by them. However, on the question of nature of proceedings which can be filed to challenge the appointment of a Judge of the superior Court, the learned Judges of the Bench were equally divided. Yaqub Ali, C.J. and Anwarul Haq, J. were of the view that no petition under Article 199 of the Constitution could be brought to call in question the appointment of a Judge of the superior Court in view of the bar contained in clause (5) of Article 199 of the Constitution. However, both the learned Members of the Bench were further of the view that in a properly constituted proceedings the appointment of a Judge of the superior Court could be collaterally challenged. The other two learned Members of the Bench, Justice Salahuddin Ahmad and Justice Muhammad Gul, however, held that proceedings in the nature of quo warranto could be filed against the Judge of a superior Court under Article 199 of the Constitution to challenge the legality of his appointment. Abrar Hassan's case (supra), has an important bearing on the controversy raised in the above cases, and therefore, we would examine this case in some detail. Mr. Abdul Hafeez Pirzada relied on the following observations from the judgment of Muhammad Yaqub Ali, C.J. which supported his contention:-

"In consonance with this historical background, Judges of the Supreme Court and High Courts were, in the 1956 Constitution, excluded from the definition of 'Service of Pakistan.' In the Constitution of 1962, a departure was made and the Judges of superior Courts were not specifically excluded and this pattern has been followed in the 1973 Constitution. This, however, does not affect the legal status of Judges. So long as Judges of superior Courts act as interpreters of law and Constitution and decide disputes not only between citizen and citizen, but also between citizens and State and exercise the power to strike down actions of the State as without lawful authority, they do not fall in the category of agents and servants of the State to whom writs issue under Article 199. In my view clause (5) of Article 199 is enacted to achieve this object.

Another reason why writs should not issue from one High Court to another High Court and from one Judge to another Judge of the same High Court is that such a course will destroy the traditional high degree of comity among the Judges of superior Courts which is essential for the smooth and harmonious working of the superior Courts. Observations to this effect will be found in the judgment delivered by the Court in Mian Jamal Shah v. The Member, Election Commission and others. This is one of the cases on which Mr. Mumtaz. Hassan relied in the course of his address. The respect and amity which the Judges should extend to each other will certainly be diminished if they were to issue writs to each other.

Lastly, as I read the provisions of Article 199, they spell out that a writ will not issue from one Judge of a High Court to another Judge of the same Court. Article 199 (1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local Authority. A High Court cannot, therefore, issue a writ to a person performing functions in another province. This restriction applies equally in case of High Courts as the Judges who constitute these Courts perform their functions outside the territorial jurisdiction of each other. The exclusion of High Court from the definition of 'person' is, therefore, not intended to debar a High Court from issuing writs to other High Courts. This object is fully served by the primary condition laid down in Article 199 (1). What then is the purpose of clause (5) of Article 199. Obviously, not to debar a High Court from issuing a writ to itself. It is too absurd to contemplate that a writ could ever issue from the 'High Court of Lahore' to the' High Court of Lahore'. A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants, under Article 199 as without lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection one should bear in mind large number of decisions given by High Courts in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation Authorities, Custodian of Evacuee Property, Settlement Authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Courts to quash, under Article 199, judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude Judges from the term High Court and Supreme Court in clause (5) of Article 199.

I, however, do not mean to say that if a Judge has reached the age of superannuation or is otherwise not qualified to hold the office of a Judge of a superior Court, there is no remedy at law against him. His capacity to hold the office can be questioned in proper proceedings, but not by a writ under Article 199 of the Constitution. The judgment delivered by a Judge who is not qualified to hold the office may be brought before this Court on the ground that it is not a judgment delivered by the High Court or it may be challenged on the ground that the High Court is not properly constituted because a judgeship is vacant. "

72. To the similar effect were the observations of Anwarul Haq, J. in Abrar Hassan's case (supra):-

"On behalf of the appellant it was submitted that the need for preserving comity among the Judges of the superior Courts could at best be described as a principle of law, which could not be permitted to derogate from the true meaning of the relevant Constitutional provision. ????????????

The reply to this argument appears to me to be two-fold:--

That the principle in question is being invoked only as an aid to interpretation, by explaining the purpose underlying the exclusion of the High Courts and the Supreme Court from the definition of 'person' as given in paragraph (5) of Article 199 of the Constitution, and not in derogation of the true meaning of the said provision; and

(b) ??????? That if effect is to be given to the other principle prohibiting a challenge to the position of a de facto Judge in collateral proceedings, ????? then considerations underlying that principle ought to be weighed and considered side by side with the imperatives of maintaining comity among the Judges of the superior Courts, a requirement essentially in the public interest and not for the benefit of the Judges themselves.

The observations made by Cornelius, C.J., which reference was made by the learned Attorney-General are indeed highly relevant in this behalf. It is interesting to note that these considerations were recently highlighted by a Full Bench of the Lahore High Court, consisting of seven Judges, in Mujibur Rehman Shami v. A Judge of the High Court PLD 1973 Lah. 778, while examining the question whether a petition for contempt of the High Court could be maintained against a Judge of that Court itself. The learned Judges concluded that such a petition could not be maintained as besides other considerations, it would be ?????????? destructive of the traditional respect and comity existing among the Judges of the superior Courts.

Taking, therefore, a comprehensive view of the matter, I am in respectful agreement with his lordship the Chief Justice that the bar contained in paragraph (5) of Article 199 applies to the issuance of writs in respect of all orders: actions and acts of a High Court or the Supreme Court, and the Judges thereof in the exercise of their functions as such Judges, and also to any proceedings which seek to restrain them from performing their judicial functions or holding their offices as such. The bar, however, does not apply to matters concerning the Judges of these Courts in their private or individual capacities, which continue to be governed by the laws of the land as in the case of other citizens. "

73. We now turn to the views expressed by the other two learned Judges of the Bench Justice Salahuddin Ahmed and Justice Muhammad Gul in Abrar ????????? Hassan's case (supra), Muhammad Gul, J. on the question of maintainability of a petition to challenge the validity of the appointment of a Judge of superior Court, observed as follows:--

"In my humble view, and I say so with great respect, that on a proper ,construction of Article 199 of the Constitution and on general principles which are well-settled, an information in the nature of quo warranto, on the allegation made in the case, does lie. This appears to be the only proper remedy against a Judge of a superior Court if by a mischance arising from an oversight or otherwise, who not being qualified or is disqualified to be a Judge, is so appointed.

Article 199 in so far as it is material to the case reads:--

"199.---(1) Subject to the Constitution, a High Court may if it is satisfied that no other adequate remedy is provided by law,--

(a) On the application of any aggrieved party, make an order--

(i) ????????????? ?????????????????????.

??????????????? ?????????????????????.

(ii) ?????????? ?????????????????????..

???????????? ??????????????????????.

(b) ??????? on the application of any person, make an order---

(i) ????? ???????????????????..

?????????? ???????????????????..

(ii) ??????? requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or

(iii) ???????????????? ??????????????????

?????????????????????? ??????????????????.

(iv) ????????????????????? ?????????????????..

?????????????????????? ???????????????????

(5) ??????? In, this Article, unless the context otherwise requires 'person' includes anybody politic or corporate, any authority of or under the control of the Federal Government, and any Court or Tribunal, other than the Supreme Court, a High Court or Tribunal established under a law relating to the Armed Forces of Pakistan;

????????? ????????????????????..

It is clear from a plain reading of clause (1) above, that in the cases covered by sub-clause (a) (ibid) the High Court has jurisdiction to issue a writ or order of appropriate kind 'on the application of any aggrieved person'. Sub-clause (a) provides for writs or orders in the nature of prohibition, mandamus and certiorari. In sharp contract with the opening words of sub-clause (a), as respect cases falling under sub clause (b) (ibid), the High Court has jurisdiction to issue writs or orders in the nature of habeas corpus and quo warranto on the application of any person'. In the instant case, the appellant, though himself not an aggrieved person, seeks writ of quo warranto against respondent No.2, to show under what authority he holds the office of the Chief Justice of the High Court of Sindh and Balochistan, which indubitably is a high 'public office' within the meaning of paragraph (ii) of sub-clause (b) above.

Recently in Salahuddin v. The Frontier Sugar Mills PLD 1975 SC 244 this Court had occasion to explain the reason enabling any public spirited person as distinguished from any aggrieved person to apply for a writ of quo warranto. The object is to secure 'the legality and sanctity of a public office' and not redress of individual grievance. It will also be instructive to refer to the celebrated case of R v. Speyer (1916) 1 KB 595 relied upon by the appellant's learned counsel. It was held in that case that a private relator could exhibit information for a writ of quo warranto to challenge the appointment of two Members of the Privy Council by the King. The Attorney-General (who later became Lord Birkenhead and the Lord Chancellor) and the Solicitor-General appearing for the clerk of the Privy Council and the Secretary of State for Home Affairs, raised various objections why a quo warranto would not lie in that case. The objections were repelled out of hand. Among, J. was 'surprised' that the law officers of the Crown should raise any technical objection to a decision on the legality of the two appointments on the merits, and observed that it was difficult to imagine a question 'more fit' for determination by the Court. Lord Chief Justice Reading stated: 'It would seem strange that the Court by refusing the remedy should perpetuate illegality'. This case was noticed with approval by this Court in Masudul Hassan v. Khadim Hussain PLD 1963 SC 203 In this respect the jurisdiction exercised here is similar to that exercised by the High Court in England. I will presently revert to clause (5) of Article 199 which was canvassed by the learned Attorney-General in support of the conners proposition which has found favour with My Lord the Chief Justice.

It should never be forgotten that the Constitution has set out with great particularity the qualifications for the appointment of Judges of the Superior Courts: So also the inhibitions and limitation attaching to them, while they remain and cease to be such Judges. See for instance Articles, 197, 179, 182, 193, 195, 200 and 207 of the Constitution. These provisions are vitally connected with the status, dignity and independence of the Superior' Judiciary in the country, and have not been inserted in vain. Therefore, any breach or non-observance of these provisions has always been regarded as justiciable. The cases of Joti Prokash Mitter, Adita Narain Singh and Malik Ghulam Jilani, noticed in the judgment of my lord the Chief Justice are some of the cases in point.

That the information was validly exhibited in this case, for a writ of quo warranto, also finds strong support in the statement of law in paragraph 246, American Jurisprudence, Vol. 46, noticed in the judgments of my lord the Chief Justice and my learned brother Salahuddin Ahiaad J. It stated in the paragraph that the right or title or a de facto Judge "can be determined only in quo warranto proceedings-- --- -- --- and cannot be questioned in the case before him or in a collateral proceedings". This aspect of the matter in my humble opinion stands concluded by this Court's judgment in Farzand Ali v. West Pakistan PLD 1970 SC 98. In that case the constitutionality of the Third, Fourth and the Sixth Constitutional Amendments to the 1962 Constitution was assailed on the ground that from among the members of the then National Assembly, 33 persons who voted in favour of the amendments were disqualified to be members of the National Assembly under Article 103 as it originally stood and therefore the aforesaid three Constitutional amendments, which empowered the Government, inter alia, to send Civil Servants on compulsory retirement under certain circumstances were invalid not being passed by the prescribed majority of validly elected members. Therefore, the resultant action taken by the Government against the appellants was vitiated. The counter argument on behalf of the Government was two-fold. First, that the concerned 33 persons were declared as duly elected members of the National Assembly and therefore, their membership could not be assailed on account of any disqualification suffered by them during the pre-election period otherwise than by election petitions as provided in Article 171 of that Constitution read with relevant provisions of the National and Provincial Assemblies (Elections), Act, 1964 (Act VII of 1964) (repealed). Secondly, the elections of 33 persons concerned having gone unchallenged, could not now be questioned in collateral proceedings, constituted to impugn the orders of compulsory retirement of the appellants in that case. The first part of the argument was repelled by this Court with the following observations:-

"There is no reason, why relief by way of quo warranto should not be available in a case where the remedy by way of an election petition is no longer possible or is not the appropriate remedy or the disqualification is a continuing one which debars a person not only from being elected to an office but also from holding that office."

The second limb of the argument was however, accepted with the following observation:-

"There is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98(2)(b) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interests may have been affected by the legislative measures enacted in the meantime."

The conclusion in the second part of argument rested on the legal maxim "that the acts of officers de facto cannot be questioned collaterally". See Colly's Constitutional Limitations, 8th Edition, Part 2 at page 1357. The rationale of the maxim as explained by the learned Author is to preserve "order and regularity and to prevent confusion in the conduct of public business". The principle laid down and accepted by this Court in Farzand Ali's case in my humble view extends also to the instant case.

It would now be convenient to consider whether by virtue of clause (5) which expressly excludes the Supreme Court, a High Court and a Court Martial from the definition of "persons", with a view to exempting these institutions or bodies from the writ jurisdiction of a High Court under the Article, would by implication also exempt the Judges or officers who man these Courts? It is perfectly true that there cannot exist a Court without a Judge and indeed Judges are structural components of Courts. It may also be conceded readily, that that the terms Judge and Court are often used interchangeably as synonymous. But this is not to say that the distinction between a Judge as an individual and the Court as seat of justice as an institution is completely obliterated. The two remain distinct entities, and this distinction is manifest even in the excerpt from the American Jurisprudence relied upon by the learned Attorney-General and reproduced in the judgment of my lord the Chief Justice. Generally speaking a Judge is properly identified with; the Court, in relation to something done in exercise of the jurisdiction of the Court. Otherwise his personality remains distinct and separate from the Court. As individual, he remains subject to the laws of the land like the rest of the citizenry, save when expressly exempted. Therefore, I regret to be unable to subscribe to the broad proposition canvassed by the learned Attorney-General that a Judge is to be completely identified with the Court, for the purpose of saving provisions in clause (5) of Article 199. In my humble opinion a Judge becomes synonymous with the Court only when he acts in exercise of the jurisdiction of the Court: the synonymity does not go beyond that, and the saving clause must be read as confined in relation to order or judgment by a Judge in exercise of the jurisdiction of the Court. It would, if I may say so with respect, be unreasonable to extend it to the person of the Judge completely and for all purposes. For instance, if a Judge were to illegally confine his domestic servant for misbehaviour, a writ of habeas corpus would certainly lie against the Judge. Here the act complained of is not that of a Judge but is of an incensed master who happens to be a Judge, and the exception cannot reasonably extend to such an act. If on the other hand a Judge were to try and convict his domestic servant and commit him to prison, in exercise of the jurisdiction of the High Court, he will be acting as a Court and writ of habeas corpus will not lie because of saving as clause (5)."

74. Salahuddin, J. while agreeing entirely with Muhammad Gul, J. on the question of nature of proceedings which could be filed to challenge the appointment of a Judge of superior Court, observed as follows:-

"As regards the first contention, I entirely agree with the view expressed on it by my learned brother Muhammad Gul, J. On the plain language of Article 199 (1)(b)(ii) I find no difficulty in holding that the appellant has a locus standi to maintain the petition and that the petition is maintainable against respondent No.2. Article 199(5) is no bar to the maintainability of such a petition against a Judge of a High Court in his individual capacity as distinct from his act in the capacity of a Court or as Member of the Court. It is not disputed that the office of the Chief Justice of a High Court is a public office. The relevant provisions of Article 199 of the Constitution are as follows:-

"199.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--

(a) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...

(b) on the application of any person, make an order---

(I) ????????????? .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...

?????????????????? ?????????????????..

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office:

?????????????????????????????????????????????????????????????????????????????????????????.

(5) In this Article, unless the context otherwise requires.-- ' person' includes any body politic or corporate, any authority of or under the control of the Federal Government, and any Court or Tribunal, other than the Supreme Court, a High Court or Tribunal established under a law relating to the Armed Forces of Pakistan;

(The underlinings herein are mine).

The opening words "unless the context otherwise requires" must be kept in mind while interpreting clause (5). The words "Judge of a High Court" and "a High Court" are not always synonymous or interchangeable. The following extract from 46 American 'Jurisprudence, 2nd Edn., section 3, page 98 supports this view:-

' The distinction between the term 'Judge' and the term ' Court' is often made and is well-recognized. The words are, however, often used interchangeably, and are frequently used in statutes as synonymous and convertible terms, the word 'Judge' often being used when reference is manifestly to a Court, and vice versa. In such cases, the word 'Court' has been construed to mean 'Judge' when necessary to carry into effect the legislative intent. Another example of interchangeable use of the words is that the Judge of a Court while presiding over it is, out of courtesy, called 'the Court'.'

A Court cannot exist without a Judge, and the Judge is thus an indispensable part of the Court, but he is only a part of it." (The underlinings, again are mine, and the matter underlined, here in italics, bear out my point of view).

The bar contemplated under clause (5) of the Article is, inter alia, against a High Court as such and not against a Judge of a High Court in his individual capacity apart from his function as a Court. The present petition does not seek any writ against the act or order of a Judge of a High Court as a Court, but questions his authority or right to act as such Judge. While the former is not permissible under Article 199, the latter is. It seems now well-settled that this is the only way permitted to challenge the appointment of a Judge made in contravention of the clear provisions of the Constitution laying down meticulously the qualifications of such appointment. The language of Article 199(1)(b)(ii) is plain and unambiguous, and it entitles any person to seek information in the nature of quo warranto against a person holding or purporting to hold a public office. The provisions of the Constitution are clear and need no support from decisions of any other country which either has no written Constitution, or has a written Constitution, which does not make the point clear and beyond dispute. Nevertheless, the following extract from 46 American Jurisprudence, 2nd Edn., section 246 supports the view that information in the nature of quo warranto lies in such a matter and that the validity of the appointment of such a Judge cannot be challenged it a collateral proceeding:-

'Generally, a de facto Judge's title or right to the office can be determined only in a quo warranto at suit of the sovereign, and cannot be questioned in the case before him or in a collateral proceeding. Thus, generally, his title and authority may not be questioned in a proceeding to obtain a writ of prohibition to prevent him from doing an official act, or in a suit to enjoin him from performing the duties of his office, or in a habeas corpus proceeding to procure the release of a person convicted of crime before him.'

As to the locus standi of the appellant the Constitution itself is quite clear and entitled 'any person' to make the application under Article 199(1) (b) (ii). Even in the case of an unwritten Constitution it has been held that a stranger and a member of the public acting in good faith can apply for a writ of quo warranto. Vide R. v. Speyer (1916) 1 KB 595, wherein at page 609 it has been observed that such remedy is available to private persons.

In India which had a written Constitution but which is silent on the particular point, a writ of mandamus was issued against a Chief Justice of a High Court on a Constitution petition made by a Judge of that Court. Vide Jyoti Prokash N H.K. Bose, C.J. AIR 1963 Cal. 483. This decision was later set side by the Supreme Court of India on merit, but the Supreme Court slid not stay that the petition was not maintainable

Reverting to the maintainability of the petition, Article 192 (1) is neither relevant nor affords any guidance in this matter. Take the case of a person who is not a citizen of Pakistan, appointed through inadvertence or deliberately as a Judge of a High, Court in utter disregard of the express provisions of Article 193(2), which, inter alia, provides that a person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, etc. :i is difficult to conceive that such an appointment cannot be challenged or remedied. and the mischief is allowed to be perpetuated. Or is it left to the off-chance of an aggrieved litigant questioning the particular Judge's act as manifested in the decision of his case, and thus incidentally furnishing an occasion to challenge the validity. of the Judge's appointment? The learned Attorney-General has rather bluntly said that there is no remedy against such an unconstitutional appointment. I am definitely of the opinion that such unconstitutional appointment can be challenged and remedied only by way of a Constitution petition under Article 199(1) (b) (ii) of the Constitution and not in any collateral proceeding. This view receives support though indirectly from a decision of this Court in Civil Petition for Special Leave to Appeal No. 16-P of 1974 (Malik Ghulam Jilani v. Mr. Justice Muhammad Gul). In this case, also, the appointment of a Judge of the Supreme Court was challenged on a Constitution petition, and neither the High Court nor this Court before which the matter ultimately came up for decision ever held that the petition itself was not maintainable. The mere fact that the question of the maintainability of the petition was not specifically raised in it by any party is no reason for thinking that either the High Court or this Court had not applied its mind to the question and took it for granted that the petition was maintainable. The case was, of course, decided on merit, but this does not, in any way, affect the relevance of the case on ? the point now in issue before this Court."

75. It is, therefore, quite clear that there was unanimity in the views of all the four learned Members of Bench in Abrar Hassan's case that the appointment of a Judge of superior Court could be brought under challenge before a Court. However, there was divergence of opinion on the question of nature of proceedings which could be filed to challenge such appointment. Muhammad Yaqub Ali, C.J. and Anwarul Haq, J. were of the view that a direct proceeding to challenge the appointment of a Judge of superior Court under Article 199 of the Constitution would be barred in view of the provision of clause (5) of Article 199, and therefore, such an appointment could only be challenged collaterally in a properly filed proceedings. The other two learned Members of the Bench Salahuddin Ahmed and Muhammad Gul, JJ. on the contrary held the view that such appointment could be challenged directly only through a petition under Article 199(1)(b)(ii) of the Constitution and not collaterally in other proceedings. This divergence of opinion amongst the learned Judges of the Bench in Abrar Hassan's case was the result of different interpretation of clause (5) of Article 199 of the Constitution by them. Muhammad Yaqub Ali, C.J. and Anwarul Haq, J. held that the 'Judge and 'High Court' are synonymous and interchangeable, and therefore, issue of a writ to a Judge would amount to issuance of writ to High Court which is prohibited by Article 199(5) of the Constitution. The other two learned Members of the Bench, Slahahuddin Ahmed and Muhammad Gul, JJ. while disagreeing with the above interpretation, held that a Judge and the Court are not always synonymous. According to them, the Judge is properly identified with the Court when it does something in exercise of the jurisdiction vested in it as a Court. Otherwise, its personal identity remains distinct from the Court. The point has been aptly illustrated by the learned Judges (Salahuddin Ahmed, J and Muhammad Gul, J. by citing an example where the Judge unlawfully confines his domestic servant at his house and when he convicts and sentences him to jail in a case brought before him as a Judge of the Court. In the former case, the action of the Judge will be amenable to the jurisdiction of High Court under Article 199 of the Constitution while in the latter case, it cannot be challenged under Article 199 ibid. Once again there appears to be unanimity in the views of all the learned four Members of the Bench in Abrar Hassan's case, that a Judge of a superior Court in his personal and individual capacity is not immune from the process of Court under Article 199 of the Constitution and that this immunity extends only to the acts and orders passed as a Judge of the Court or a member of the Court.

76. The dominant consideration which persuaded Muhammad Yaqub Ali, C.J. and with which Anwarul Haq, J. agreed, were stated in the opinion of Muhattimad Yaqub Ali, C.J. as follows:-

A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants under Article 199 as without, lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection one should bear in mind large number of decisions given by High Court in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation Authorities, Custodian of Evacuee Property, Settlement Authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Courts to quash, under Article 199, Judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude 'Judges from the term High Court and Supreme Court in clause (5) of Article 199.

77. With greatest respect, we may point out that the judgments delivered by a Judge or group of Judges are the functions which identify the Judge or Judges with the Court and therefore, to that extent the bar contained in clause (5) of Article 199 of the Constitution is fully attracted. The conclusions of Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hassan's case, supra, were also not different. What these two learned Members of the Bench (Salahuddin Ahmed and Muhammad Gul, (J.) in Abrar Hassan's case said was, that while the orders passed by a Judge in exercise of the jurisdiction of the Court cannot be called in; question under Article 199 of the Constitution, the acts of a Judge performed in his personal capacity did not enjoy this protection. The difference between a Judge acting as a Court and a Judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a Judge will not be answerable for wrong done by him in his individual capacity. It may be pointed out that by accepting the office of a Judge, a person does not lose his individual identity as an ordinary citizen. Therefore, while action taken or orders passed by him in the former capacity as a Judge of the Court cannot be brought under challenge, under Article 199 of the Constitution, his action as an ordinary individual will be subject to ordinary law of the land including Article 199 of the Constitution. In this view of the matter, in our humble opinion, the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hassan's case in respect of the maintainability of a petition seeking information in the nature of quo warranto against a Judge of superior Court seems to be more rational, practical and nearer to the spirit of the provision of the Constitution. A petitioner in a petition filed against a Judge of the superior Court seeking information in the nature of quo warranto, does not challenge any action or order of a Judge passed in his capacity as a Judge of the Court or a member of the Court. The qualification to hold the office of a Judge is personal to the individual and has nothing to do with his performance of duty as a Court or member of the Court. The qualifications for appointment of Judges of the superior Court are laid down meticulously in the Constitution. To possess the qualifications prescribed under the Constitution is a sine qua non for an individual to hold the office of a Judge of superior Court. Therefore, when the appointment of a Judge of superior Court is challenged on the ground that he did not possess the qualification prescribed by the Constitution, the relator is not asking the Court to strike down any of his actions which he has performed or is performing as a Judge of the superior Court but asks for examination of his personal qualification to be entitled to hold the office of the Judge of superior Court. Such an exercise, in our humble opinion, does not fall within the mischief of the provision of Article 199 (5) of the Constitution. We are, therefore, in no doubt that a petition seeking information in the nature of quo warranto lies against the Judge of a superior Court under Article 199 of the Constitution. We are further of the view that such an attack on the validity of the appointment of a Judge of a Superior Court through collateral proceeding is not a proper remedy as firstly, such occasion may or may not arise and secondly, when the appointment of a Judge is attacked collaterally in a proceeding arising from his order, he is not necessarily arrayed as a respondent in the Court and therefore, he cannot be called upon to justify his appointment. It is also to be noted that in a collateral attack, on the validity of the appointment of Judge, the proceedings are directed against the order passed by him and validity of his appointment is only challenged through a side wind, which is possible only, if the order passed by the Judge is subject to appeal, revision, review or other proceedings before a higher forum. Therefore, if the law does not permit any appeal or other proceedings against the order passed by a Judge, the occasion to challenge the validity of his appointment in collateral proceedings may not arise at all. For this reason too, we are in respectful agreement with the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ.in Abrar Hassan's case that a petition against the Judge of a superior Court seeking information in the nature of quo warranto is maintainable under Article 199 of the Constitution. This view is more rational and has the effect of advancing the remedy and suppressing the mischief. Mr. Pirzada also relied on the following observations of Abdul Kadir Shaikh,-J. in Federation of Pakistan v. Muhammad Akram Shaikh (supra) in support of his contention that a Judge of a superior Court cannot issue a writ to another Judge of the Court:-

"The prayer is founded on the glorious traditions of this Court which have always been the hallmark of the administration of justice in this country. It is in that sense that I have understood the prayer and I cannot persuade myself to agree with the observations made by my brother Shafiur Rahman, J. that 'the Federation of Pakistan by repeating such an application has manifested an attitude of intransigence insisting that its Press Release should be respected, implemented and honoured first and reconstituting the Bench which is to hear the matter and a decision should be given thereafter under its umbrella'.

However, I feel that reference is necessary to certain judicial principles which have agitated my mind. As I read the prayer made in the Miscellaneous Petition under consideration, it is indeed for a direction being issued by nine Judges of this Court constituting the Bench, to the rest three Hon'ble Judges of the Bench not to deal with and hear the main Review Petition on the ground that they would virtually be Judges in their own cause. The question therefore is whether it is proper for the Bench of this Court to deal with an application wherein such a direction is prayed for.

Now it may be noticed that the Supreme Court, as a body under the Constitution, consists of a Chief Justice and the Judges of that Court, and each Judge is vested with the judicial powers equal to any other Judge, even for that matter, the Chief Justice: There is, therefore, equal distribution of judicial power among the Judges. According to the Rules of the Court, the cases before the Court are heard and decided by a Bench consisting of not less than three Judges, to be nominated by the Chief Justice, except for certain categories of cases which may be heard and decided by a Bench of two Judges nominated by the Chief Justice. The question that has agitated my mind is whether nine out of twelve Judges of this Bench constituted by my lord the Chief Justice should deal with the prayer that nine Judges of the Bench should direct the remaining three Judges of the Bench not to participate in the hearing of the Review Petition. I may refer to a well-settled position in law that a writ under the Constitutional jurisdiction cannot be issued by a High Court to itself, or a Judge of that Court on the principle of necessity of maintaining a high degree of comity among the Judges of the superior Court. This Court highlighted this principle in the case of Mian Jamal Shah v. Election Commission (PLD 1966 S C 1). That case arose out of the judgment of a Full Bench of former High Court of West Pakistan (Lahore Bench), and one of the questions raised before the Full Bench was whether a writ under the Constitutional jurisdiction could be issued against the Election Commission which constituted of person having the status of Superior Judges, and as in particular the Member, whose order was placed before the Full Bench for judicial Review was himself a Judge of that High Court. Learned Judges of the Full Bench agreed that -no writ could issue to a superior Court and this was clearly in accordance with the direction derivable from the definitive provision of Article 98 of the Constitution of 1962 that no order under that Article shall issue to the Supreme Court or High Court. But they found that the Member was persona designata in the case and did not act as the Judge of the High Court and relying on two cases from the English jurisdiction in which it was held that certiorari could issue in respect of an order of a High Court Judge acting as a Tribunal, they came to the conclusion that the Member was 'subject to the control of the High Court under Article 98 and is amenable to an order passed by it under that Article: Dealing with this situation, Cornelius, C.J. referred to an observation in one of the judgments cited by the Full Bench with reference to the idea of a superior Court issuing a writ to itself viz., "the process. involves the rather ludicrous position that Judges are called upon themselves to show cause to themselves why their orders should not be quashed." In this behalf Cornelius, C.J. observed as under:

"In the present case, the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of say two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of 'ludicrousness' might arise if a writ were sought from a Single Judge of the High Court to avoid action by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of 'ludicrousness' there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the Superior Courts, which could be urged in support of such a provision,"

This principle was further highlighted by Muhammad Yaqub Ali, C.J. in Abrar Hassan v.. Government of Pakistan PLD 1976 SC 315 with these, observations at pages 330 and 331 as under:

"It is relevant in this connection to bear in mind that totality of the jurisdiction conferred on a High Court by Constitution and law is exercised by the individual group of Judges sitting singly or in Benches. In this context each Judge is a High Court. That explains why orders, judgments and decrees passed and summons and warrants issued under the direction of a Judge are expressed in the name of the High Court and not in the name of the individual Judge. One may also refer to Article 201 of the Constitution which lays down that any decision of the High Court shall, to the extent it decides a question of law or is based upon or enumerates a principle of law, be binding on all Courts subordinate to it. The decision rendered by the Judge of a High Court thus carries the authority conferred by Constitution and law on the High Court and not the authority of an individual Judge. To my mind these provisions of the Constitution bring out clearly that the term High Courts and Supreme Court used in clause (5) of Article 199 includes Judges of these respective Courts.

The policy of law that no writ will issue to a High Court and Supreme Court is based on sound principles. If one Judge of a High Court were to issue a writ to another Judge under Article 199, the Judge to whom the writ is issued, may in exercise of the same jurisdiction nullify the writ. This is logical consequence of the fact that High Courts and their individual groups of Judges are invested with coordinate jurisdiction."

With reference to historical background and practice of British Courts, from which writ jurisdiction was borrowed, Muhammad Yaqub Ali, C.J. gave several reasons why writs do not lie against the Judges of superior Courts, and finally observed as under at pages 332. and 333:

In consonance with this historical background, Judges of the Supreme Court and High Courts were, in the 1956 Constitution, excluded from the definition of 'service of Pakistan.' In the Constitution of 1962, a departure was made and the Judges of superior Courts were not specifically excluded and this pattern has been followed in the 1973 Constitution. This, however, does not affect the legal status of Judges. So long as Judges of superior Courts act as interpreters of law and Constitution and decide disputes not only between citizen and citizen, but also between citizens and State and exercise the power to strike down actions of the State as without lawful authority, they do not fall in the category of agents and servants of the State to whom writs may issue under Article 199. .In my view, clause (5) of Article 199 is enacted to achieve this object. .

Another reason why writs should not issue from one High Court to another High Court and from one Judge to another Judge of the same High Court is that such a course will destroy the traditional high degree of comity among the Judges of superior Courts which is essential for the smooth and harmonious working of the superior Courts. Observations to this effect will be found in the judgment delivered by the Court in Mian Jamal Shah v. The Member, Election Commission and others. This is one of the cases on which Mr. Mumtaz Hassan relied in the course of his address. The respect and amity which the Judges should extend to each other will certainly be diminished if they were to issue writs to each other.

Lastly, as I read the provisions of Article 199, they spell out that a writ will not issue from one Judge of a High Court to another Judge of the same Court. Article 199(1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local authority. A High Court cannot therefore issue a writ to a person performing functions in another Province. This restriction applies equally in case of High Courts as the Judges who constitute these Courts perform their functions outside the territorial jurisdiction of each other. The exclusion of High Court from the definition of 'person' is, therefore, not intended to debar a High Court from issuing writs to other High Courts. This object is fully served by the primary condition laid down in Article 199 (1). What then is the purpose of clause (5) of Article 199. Obviously, not to debar a High Court from issuing a writ to itself. It is too absurd to contemplate that a writ could ever issue from the 'High Court of Lahore' to the 'High Court of Lahore'. A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants, under ,Article 199 as without lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection one should bear in mind large number of decisions given by High Courts in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation Authorities, Custodian of Evacuee Property, Settlement Authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Courts to quash, under Article 199, judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude 'Judges' from the term High Court and Supreme Court in clause (5) of Article 199.

I, however, do not mean to say that if a Judge has reached the age of superannuation or is otherwise not qualified to hold the office of a Judge of a superior Court, there is no remedy at law against him. His capacity to hold the office can be questioned in proper proceedings, but not by a writ under Article 199 of the Constitution. The judgment delivered by a Judge who is not qualified to hold the office may be brought before this Court on the ground that it is not a judgment delivered by the High Court or it may be challenged on the ground that the High Court is not properly constituted because a judgeship is vacant. "

The above views expressed by Cornelius, C.J. and Muhammad Yaqub Ali, C.J. are weighty principles of law, and I am clearly of the opinion that one set of Judges of this Bench, which has been constituted by my lord the Chief Justice, cannot issue a direction to the other set of Judges or any of the Judges of this Bench, not to associate themselves or himself in the hearing of the Review Petition. I cannot conceive of a situation where one Judge of a Division Bench constituted by my lord the Chief Justice to hear a case can direct the other Judge of the Bench not to hear the case on the ground that he has a bias or an interest in the case, or for that matter on any other ground whatsoever. If this bar were not to exist, then it would amount to permitting the Judges to destroy or take away the judicial function or power of each other, which position is neither conceived nor permitted by the Constitution.

As already held by me the prayer made in the miscellaneous petition under consideration is indeed for issue of a direction by nine Judges of this Bench to the remaining three Judges of the Bench which has been constituted by my lord the Chief Justice, not to hear the main Review Petition on the ground that they would be acting as Judges in their own cause. I have also remarked earlier that this is a very unusual prayer--in fact a unique of its kind, with no precedent as I know of--wherein some of the Judges hearing a cause or dealing with a question whether the judgment rendered by this Court to which they were the parties, has resulted in the invalidity of their own appointment to the office as Judges, and it is submitted that since this question touches upon the legality of their own appointment, they should not associate themselves with the case for the reason that they would virtually be the Judges in their own cause. The prayer is not founded on any ground of legal disqualification or incapacity attached to the three Hon'ble Judges themselves, but is based on the judicial propriety and glorious traditions of this Court to which reference has already been made, and which also find place in Article 4 of the Code of Conduct framed by the Supreme Judicial Council. that "a Judge must decline resolutely to act in a case involving his own interest" I am, therefore, clearly of the view that it is for the three Hon'ble Judges of this Bench concerned, and not the rest nine Judges of the Bench, to decide in their judicious sagacity and wisdom whether they may participate in the proceedings of the Review Petition.

I am conscious of the fact that the three Hon'ble Judges have already expressed themselves in regard to the same prayer that "they will not feel embarrassed to hear the case", which is recorded in the order of my lord the Chief Justice; dated 16-5-1989. However, since the prayer has been repeated in the Miscellaneous Petition, with the additional prayer that "if the (first) prayer is not accepted by this Hon'ble Court, the "Federal Government has instructed that the review petition may be allowed to be withdrawn, without prejudice to the contentions raised in the Review Petition", the consideration thereof has become necessary once again, for the decision of the Miscellaneous Petition.

I, therefore, dispose of the Miscellaneous Petition with these observations. "

78. The above observation of Abdul Kadir Shaikh, J. relied by Mr. Abdul Hafeez Pirzada, firstly, is not the opinion of the Court in Federation of Pakistan v. Muhammad Akram Shaikh (Supra), which is reflected in the majority judgment of Shaflur Rehman, J. Secondly, Abdul Kadir Shaikh, J: in his above observations has referred to the opinion of Cornelius, C.J. in Jamal Shah's case and Muhammad Yaqub Ali, C.J.'s observations in Abrar Hassan's case in support of his conclusion that a writ under Article 199 of the Constitution could not be issued by one Judge of the High Court to another Judge of the same Court. With greatest respect to the learned Judge, this was not the point in issue in Muhammad Akram's case. Apart from it, we have already considered in detail the observations of Cornelius, C.J. and Yaqub Ali, C.J. in Jamal Shah and Abrar Hassan's cases respectively earlier in this judgment and have not agreed with them. Lastly, the observations of Abdul Kadir Shaikh, J. quoted above also deal with the question of bias on the part of a Judge of superior Court while dealing with a case before him. These observations of Abdul Kadir Shaikh, J. did not support the contention of Mr. Abdul Hafeez Pirzada, on the question of bias dealt with earlier in this judgment and rather lend support to the view taken by us in this behalf.

79 Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No. 2 also heavily relied on the observations of Cornelius, C.J., Yaqub Ali, C.J. and Abdul Kadir Shaikh, J. in Jamai Shah, Abrar Hassan and Muhammad Akram Shaikh's cases (supra) respectively, to contend that if the principle that a Judge of superior Court cannot issue a writ to another Judge of the same Court under Article 199 of the Constitution is not strictly adhered to, it will effect and destroy the traditional comity existing between the Judges of superior Courts. Maintenance of high degree of comity between the Judges of superior Courts is neither a rule of law nor a Constitutional requirement. It is only a highly desirable tradition which has existed for long and should continue to be followed by the Judges to maintain harmony and smooth working of the Courts, and also to preserve their institutional image in the eyes of the public. However, this high tradition of maintaining comity between the Judges of superior Courts cannot come in the way of discharge of more important Constitutional duty imposed upon the Judges of the superior Courts to protect and defend the Constitution under rt,P oath of their office. Therefore, if the violation of a provision of the Constitution is brought to the notice of a Judge of the superior Court in a properly filed proceedings which involved the person of another Judge of the same Court, the relief, in the absence of a Constitutional bar, cannot be declined relying on the principle of high tradition of maintaining comity between the Judges of the superior Courts. The proceedings in the nature of quo warranto as held by Indian Supreme Court in the case of University of Mysore v. Govinda Rao (AIR 1965 SC 491) confer jurisdiction and authority on superior Courts to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. These proceedings provide a positive safeguard to citizens against usurpers of public offices, who in some cases may be allowed to continue to hold the office in connivance or with the help of the executive authority.

80. At this stage, we may also deal with another argument advanced by Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No. 2, in this behalf. Mr. Abdul Hafeez Pirzada, very vehemently argued that the only method provided under the Constitution to remove a Judge of the superior Court from his office is, to initiate proceedings against him before the Supreme Judicial Council as provided under Article 209 of the Constitution. Article 209 of the Constitution referred by the learned counsel reads as under:-

"209. (1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.

(2) ??????? The Council shall consist of--

(a) ??????? the Chief Justice of Pakistan;

(b) ??????? the two next most senior Judges of the Supreme Court; and

(c) ??????? the two most senior Chief Justices of High Courts.

Explanation. ---For the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice otherwise than as acting Chief Justice, and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts.

(3) ??????? If at any time the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then--

(a) If such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and

(b) If such member is the Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place.

(4) ??????? If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority.

(5) ??????? If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court--

(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

(b) ??????? may have been guilty of misconduct, the President shall direct the Council to inquire into the matter

(6) ??????? If, after inquiring into the matter, the Council reports to the President that it is of the opinion---

(a) ??????? that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and

(b) ??????? that he should be removed from office the President may remove the Judge from office

(7) ??????? A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.

(8) ??????? The Council shall issue a Code of Conduct to be observed by Judges of the Supreme Court and of the High Courts."

81. With due deference to the learned counsel, firstly, the right to move the Supreme Judicial Council (SJC) against a Judge of the superior Court under Article 209 of the Constitution is not available to any individual. Secondly, the President alone on the advice of Prime Minister or the Cabinet as the case may be, can refer a case of the Judge of the Superior Court to Supreme Judicial Council for holding an enquiry against him. Thirdly, the jurisdiction of "Supreme Judicial Council to hold an enquiry against the Judge of a Superior Court arises only when a reference is made to it by the President in this behalf., Fourthly, the enquiry by the Supreme Judicial Council against the Judge of a Superior Court under Article 209 ibid, is limited only to two points, namely (i) the incapacity of the Judge to perform the duties of his office properly arising from any physical or mental incapacity, and (ii) misconduct of the Judge concerned. Lastly, the findings of the Supreme Judicial Council in such an enquiry are recommendatory in nature and the action, if any, is to be taken by the President on the advice of the Prime Minister or the Cabinet. It is, therefore, quite clear that besides the fact that the Supreme Judicial Council itself cannot grant any relief to a person aggrieved by the illegal and unconstitutional appointment of. a Judge of the superior Court, the invalidity and unconstitutionality of the appointment of a Judge of superior Court are outside the purview of the enquiry under Article 209 of the Constitution, because such an appointment has no nexus either with the mental or physical incapacity of the Judge to perform properly, the duties of his office or with the misconduct of the Judge concerned. Therefore, the remedy provided under Article 209 of the Constitution cannot be equated with the proceedings filed under Article 199(1)(b) (ii) of the Constitution to challenge the unconstitutional appointment of a Judge of the superior Court. The reason for keeping the question of validity or constitutionality of the appointment of a Judge of superior Court outside the purview of the enquiry under Article 209 of the Constitution is obvious, as validity of such appointment is open to be challenged before the High Court under Article 199 of the Constitution in appropriate proceedings.

82. Another very important and distinguishing feature of these cases is that they were not filed under Article 199 of the Constitution which applied exclusively to the proceedings brought before the High Court. These cases were filed under Article 184(3) of the Constitution which confers exclusive jurisdiction on this Court. The proceedings under Article 199 of the Constitution before the High Court are subject to various constraints mentioned in the said Article. However, the proceedings before this Court under Article 184(3) of the Constitution differ in various ways from the proceedings before the High Court under Article 199 of the Constitution. For instance, a person may be non-suited by the High Court in proceedings under Article 199 of the Constitution on the ground that he has no personal grievance, and therefore, he is not an aggrieved person. A petitioner before this Court under Article 184(3) of the Constitution, may not have a personal grievance in the case, but if he satisfies the Court that question raised by him is of public importance and it relates to enforcement of fundamental rights guaranteed under the Constitution of a reasonably large section of people, he can successfully maintain the petition. The proceedings before this Court under Article 184(3) of the Constitution are in the nature of a public interest litigation in contradistinction to the proceedings before the High Court where the litigant seeks redress of his personal grievance and injury. Therefore, the scope and nature of proceedings, before this Court under Article 184(3) of the Constitution differ in many ways from the proceedings before the High Court under Article 199 of the Constitution. The trappings and constraints provided in Article 199 of the Constitution on the exercise of power by the High Court, are therefore, not applicable to this Court under Article 184(3) of the Constitution. This aspect of the case was examined by one of us (Justice Saiduzzaman Siddidqui) in the case Shahida Zaheer Abbasi v President of Pakistan (PLD 1996 SC 632), as follows:-

"The second part of the contention of learned Attorney-General relates to the application of the provisions of Article 199 (3) of the Constitution to the proceedings before this Court under Article 184 (3) of the Constitution. Article 184 (3) ibid, is as follows:-

"184.---(1) The supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.

Explanation.--In this clause, "Governments" means the Federal Government and the Provincial Governments.

(2) ??????? In exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.

(3) ??????? Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."

The learned Attorney-General contended that reference to Article 199 of the Constitution in Article 184(3) ibid, clearly indicated that this Court while exercising power under Article 184 (3) will have the same jurisdiction which the High Court possessed under Article 199 of the Constitution and, therefore, all limitations mentioned in Article 199, ibid, for exercise of power by the High Courts equally applied to this Court while dealing with a case under Article 184(3) of the Constitution. The scope of jurisdiction and exercise of power by this Court under Article 184 (3) of the Constitution had been the subject matter of consideration in a number of cases by this Court but I will refer here first to the case of Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 146 which is considered as the foundation judgment laying down the parameters within which the power and jurisdiction is exercised by this Court in public interest litigation under Article 184(3) of the Constitution. Muhammad Haleem, C.J. (as his lordship then was), who wrote the leading judgment in Benazir Bhutto's case, supra, after referring to the legislative history of Article 184 (3) of the Constitution observed as follows on the scope of Article 184 (3) ibid:-

"The opening words 'without prejudice' in Article 184 (3) mean only not affecting, saving or excepting and when read with the words following thereafter, to the provisions of Article 199' , the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two forums it wishes to invoke, and if it be the Supreme Court then the power exercisable is subject to the limitation under Article 184 (3) that is, that the element of 'public important' must be involved in the enforcement of fundamental rights. I would, however, like to make it clear that the power conferred on the Supreme Court by Article 184 (3) is distinct and has its origin in Article 22 of the 1956 Constitution and is exercisable on its own terminology. The impression, if there is, that the trappings of sub Article (1)(a) and (1)(c) of Article 19 are also to be read into this Article appears to me to be without substance as there are no words in Article 184 (3) to incorporate them except, of course, the words 'make an order of the nature mentioned in the said Article', which are specifically referable to the nature of the order in sub-Article (1)(c) of Article 199 giving such directions as may be appropriate for the enforcement of any of the Fundamental Rights. The nature of the order, however, is the end product of the Judicial power exercised. Therefore, it will not control or regulate, in any way the exercise of power so as to make it exercisable only at the instance of the aggrieved party' in the context of adversary proceedings.

The plain language of Article 184 (3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non-incorporation of sub-Article (1)(a) and (1)(c) of Article 199, the rigid notion of an 'aggrieved person' is implicit in Article 184(3) as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of Anglo-Saxon jurisprudence in which the only person wronged can initiate proceedings of a judicial nature for redress against the wrongdoer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This is destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of Constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach must receive inspiration from the trial of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2A), the Fundamental Rights and the directive principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam.

In this milieu, I am of the view that the adversary procedure where a person wronged is the main actor if it is rigidly followed, as contended by the learned Attorney-General, for enforcing the Fundamental rights, would become self-defeating as it will not then be available to provide ' access to justice to all' as this right is not only an internationally recognized human right but has also assumed Constitutional importance as it provides a broad-based remedy against the violation of human rights and also serves to promote socio-economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity i.e. national integration and social cohesion by creating an egalitarian society through a new legal order .

?????????????????????.

.. ... ... .. .... On the language of Article 184(3), it is needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights. If the Framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait-jacket, then they would have said so, but not having done that, I would not read any constraint in it. Article 184 (3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case."

Justice Abdul Kadir Shaikh, another learned Member of the Bench which decided Benazir Bhutto's case, supra, also recorded his separate observation on the scope of Article 184(3) of the Constitution, as follows:-

"My Lord the Chief Justice after a detailed discussion with historical background of the Constitutional provisions has rightly held that the language of Article 184 (3) is 'open ended', and the Framers of the Constitution did not intend any rigid or ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by an individual or a group or class of persons.

It is obvious from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situation. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the 'remedy' that makes the right real. It is often said that without 'remedy' there is no right. It is for this reason that Constitution-makers provided a long list of Fundamental Rights and the machinery for their enforcement. That, machinery is the Superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan.

Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait-jacket formula was prescribed for the enforcement of the Rights, the obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid formula or strait-jacket formula prescribed for enforcement of the Rights would be self-defeating."

From the above discussion, it is quite clear that the use of the expression "without prejudice to the provisions of Article 199" in the opening part of Article 184(3) merely indicated that the power of the High Court under Article 199 ibid was left intact and has not been affected by conferment of jurisdiction on this Court to deal directly under Article 184(3) of the Constitution with a case which involved a question of public importance relating to enforcement of Fundamental Rights guaranteed under Chapter 1 of Part II of the Constitution. The language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case. The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of this Court on its own terminology. The exercise of jurisdiction by this Court under Article 184(3) of the Constitution is not controlled by the provisions of Article 199 of the Constitution. I am, therefore, unable to agree with the contention of the learned Attorney-General that provisions of Article 199 ibid are to be read as part of Article 184(3) of the Constitution and therefore, exercise of power by this Court under the latter mentioned Article of Constitution is subject to limitation mentioned in Article 199 ibid. The jurisdiction of this Court under Article 184(3) of the Constitution arises on existence of two conditions mentioned in this Article. Firstly, that the Court considers that the matter brought before it involves a question of public importance, and secondly that it relates to enforcement of any of the Fundamental Rights guaranteed under Chapter 1, Part II of the Constitution. Apart from these two jurisdictional requirements, no other considerations are relevant for exercise of power by this Court under Article 184(3) of the Constitution. "

83. We are inclined to agree with the above interpretation regarding scope of proceedings before this Court under Article 184(3) of the -Constitution. As a necessary corollary, it follows that when this Court takes up a case for adjudication in exercise of its power under Article 184(3) of the Constitution, its jurisdiction is controlled and regulated by the terms of Article 184(3) and the trappings mentioned in Article 199 of the Constitution are not applicable to it. Therefore, while dealing with a case under Article 184(3) of the Constitution, this Court, by virtue of Article 187(1) of the Constitution, would be competent to issue direction or order which may be necessary for doing complete justice in the case.

84. It will be convenient at this stage to deal with an ancillary argument of Mr. Abdul Hafeez Pirzada in these cases. The learned counsel contended that even if it is held that proceedings for seeking information in the nature of quo warranto are maintainable against a Judge of superior Court, no interim order prohibiting or restraining the Judge from performing his functions could be granted during the tendency of the case. , While dealing with the scope of proceedings under Article 199 of the Constitution, filed against a Judge of the superior Court, we have held that the actions of the Judge which relate to the performance of his duty and functions as a Judge of the Court or as a member of the Court, cannot be brought under challenge under Article 199 of the Constitution before the High Court. Only such actions of a Judge of superior Court are amenable to the jurisdiction of High Court under Article 199 of the Constitution, which he performs in his personal capacity, having no nexus with his official functions as a Judge of the Court. We are, therefore, inclined to hold that the High Court while hearing a case against the Judge of a superior Court under Article 199 of the Constitution seeking information in the nature of quo warranto which we have held is maintainable, cannot pass any interim order restraining the Judge from performing his functions as a Judge of the Court, in view of clause (5) of Article 199 of the Constitution. However, this restraint on the power of High Court, is not applicable to this Court while hearing a case filed directly under Article 184 of the Constitution, as the power exercised by this Court under Article 184(3) of the Constitution is not subject to constraints and trappings mentioned in Article 199 of the Constitution. As discussed earlier, the proceedings before this Court under Article 184(3) of the Constitution are regulated by the terms of this Article and further vest the jurisdiction in this Court by virtue of Article 187 of the Constitution to pass any order, direction or decree which may be necessary to do complete justice in a matter before it. Therefore, in exceptional cases, this Court, while hearing a case against the Judge of superior Court wherein the legality of his appointment is challenged, may, if the circumstances of the case so demand, pass necessary order even restraining him from performing his functions as a Judge of the Court, if the dictates of justice so demanded.

85. The appointment of respondent No.2 as the Chief Justice of Pakistan was under clouds from the very inception. Besides, the protest voiced by the members of the legal profession against the appointment of respondent No.2, 'Made by superseding three senior Judges of this Court, the validity of the appointment of respondent No.2 as the Chief Justice of Pakistan was questioned within a month of his appointment in C.P.L.A. No. 161 of 1994, but the contention was overruled by a Bench presided over by respondent No.2 on technical grounds on 14-7-1994. A review petition filed in C.P.L.A. No. 161 of 1994 immediately after the dismissal of the petition was registered as C.R.P. No.79 of 1994 wherein the question regarding validity of the appointment of respondent No.2 was agitated in detail but the review petition though filed in July, 1994 could not see the light of the day and is still pending. The petition filed by Mr. Wahab-ul-Khairi, Advocate on 14-2-1995, challenging the unconstitutional appointment of respondent No.2 was made the basis of his prosecution under the Contempt of Court Act (Criminal Original No. 16 of 1995) and the contempt proceedings remained pending all these years. Similarly, contempt proceedings were drawn against senior Advocates of this Court Mr. Akram Shaikh and Dr. A. Basit for voicing their criticism against the appointment of respondent No.2 in the press and through editorial comments in a law journal respectively (Cr.Org. Petition Nos. 14, 17 and 18 of 1995). A well known columnist of a prestigious English daily, when commented on the appointment and conduct of respondent No.2, was also subject to contempt proceedings (Cr.Org. No.5 of 1995). Respondent No.2 taking advantage of his presence on the Bench as a presiding Judge, in the case of Al-Jehad Trust case did not allow the controversy regarding appointment of the Chief Justice of Pakistan, to be resolved, which is evident from the observations of Ajmal Mian, J. (as he then was) in his judgment in the President's Reference No.2 of 1996, already reproduced earlier in this judgment. The order passed by the Quetta Bench on 18-11-1997 in C.P.140-Q/96 requesting respondent No - 2 to constitute immediately a Full Court to consider the validity of his appointment as the Chief Justice of Pakistan, was also sent to cold storage. The former President of Pakistan, Farooq Ahmad Khan Leghari, after his resignation from the office of Presidency, is on record having admitted in his Press Conference, held immediately after his resignation, that the previous Government of Benazir Bhutto, after the decision of this Court in the case of AI-Jehad Trust v. Federation of Pakistan had moved for denotification of respondent No.2 as Chief Justice of Pakistan and appointment of the then senior most Judge as Chief Justice of Pakistan on the principle of seniority but he declined to sign the summary. In the same Press Conference, the former President further admitted that the present Government after being elected also moved for the denotification of the appointment of respondent No.2 as the Chief Justice of Pakistan and appointment of the most senior Judge as Chief Justice of Pakistan but he declined the request of the Government.

86. From the abovestated facts, it is quite clear that respondent No.2 was determined from, the very beginning not to allow hearing of those cases wherein validity and constitutionality of his appointment as Chief Justice of Pakistan was challenged and if per chance any of those cases was taken up for hearing, he saw to it that the Bench is presided over by him. The chances of a decision by this Court on the constitutionality of the appointment of respondent No.2 as the Chief Justice of Pakistan during the tenure of respondent No.2, therefore, appeared to be a remote possibility. It is also quite clear from the preceding discussion that the invalidity and unconstitutionality of the appointment of respondent No.2 was so manifest that it hardly required any adjudicative process to determine the same. The invalidity and unconstitutionality of the appointment of respondent No.2 as the Chief Justice of Pakistan almost became a settled proposition with the announcement of the judgment of this Court in the case of Al-Jehad Trust v. Federation of Pakistan (Judges' Case). In spite of the fact that respondent No.2 was a party to the judgment in the case of Al-Jehad Trust v. Federation of Pakistan (Judges' Case) and the unconstitutionality of his appointment as the Chief Justice of Pakistan had become so obvious, he refused to step down from the office of Chief Justice of Pakistan. The efforts made by the then Federal Government and the present Government to denotify the appointment of respondent No.2 as the Chief Justice of Pakistan after the judgment of this Court in Al-Jehad Trust v. Federation of Pakistan (Judges' Case) were frustrated by the then President of Pakistan for reasons best known to him. In these circumstances, the continuance of respondent No.2 in the office of Chief Justice of Pakistan was an obvious violation of the Constitutional provisions which needed immediate rectification by the Court.

87. In the above cases the right of respondent No.2 to hold the Office of Chief Justice of Pakistan is not only challenged by the private persons but the State has also taken a categorical stand that the appointment of respondent No.2 was made against the provisions of the Constitution. In fact the present Government as well as the previous Government tools steps to rectify this invalidity by recalling the appointment of respondent No.2 as Chief Justice of Pakistan, but as stated earlier the efforts were frustrated by the then President of Pakistan. In a case where the State challenges the right of a person to hold a public office, the burden is on the holder of the office to establish his legal right to the office. The Court in such a case can grant relief by way of injunction restraining the person from holding the office besides declaring his office vacant. Reference in this connection may be made to the following observations of this Court in the case of Masudul Hasan v. Khadim Hussain (PLD 1963 SC 203):-

It is well settled that when the writ is moved by a law officer on behalf of the State, it is for the respondent to establish his legal right to retention of the office in question. But where a private petitioner seeks the writ, the burden of proving that the respondent does not have the right to hold such office is placed upon the petitioner. On the evidence adduced before the High Court, it was clear that there was left a reasonable doubt as to the validity of the order of dismissal, and although on the face of it, it had the quality and effect of dismissing Khadim Hussain from his post, nevertheless the case was not one in which the Court would exercise its power of granting relief which is confined to-

(a) issuing an injunction to a person holding the office not to act therein, and

(b) where necessary, to declare the office to be vacant.

88. We have already held that the bar contained to clause (5) of Article 199 of the Constitution is applicable to the proceedings before the High Court under Article 199 of the Constitution and this bat does not extend to proceedings before this Court under Article 184 (3) of the Constitution. In the facts and circumstances stated above, we are of the view that the interim orders passed by the Quetta Bench on 26-11-1997 suspending the notification of respondent No.2 as Chief Justice of Pakistan which was later confirmed. by this Bench on 2-12-1997, is not open to any exception.

89. The above cases have been filed to challenge the constitutionality of the appointment of respondent No.2 as the Chief Justice of Pakistan. Mr. Abdul Hafeez Pirzada and Mr.Ghulam Hussain Abbasi, the two learned counsel defending respondent No.2 in these cases have questioned the locus standi of the petitioners to file these cases. They have also alleged mala fides on the part of petitioners in filing these cases. It is contended by the learned counsel that the grant of relief in the nature of quo warranto is discretionary with the Court and if the Court comes to the conclusion that the petitions lacked bona fides, the relief is to be refused. To support their contention, the learned counsel argued that the petitioner who filed C.P. 248-Q/97 is an unknown person whose credentials are dubious. They also contended that the Court should also take into account the timing selected by the petitioners to file the cases. It is contended that the case at Quetta was filed at the time, the respondent No.2 had taken cognizance of some very sensitive cases against the present Government. In this connection, they referred to the contempt case against the Prime Minister of Pakistan, and cases in which 13th and 14th Amendments in the Constitution are challenged. Mr. Ghulam Hussain Abbasi, one of the learned counsel, appearing for respondent No.2 also specifically referred to the request made by some of the' Judges of this Court to the Acting Chief Justice for summoning Full Court Meeting during the absence of respondent No.2 abroad and the reaction of respondent No.2 to that request and the incident which followed thereafter, in an attempt to establish the link of these cases with those incidents. We would refrain from ,making any comments on the cases relating to 13th arid 14th Amendments as they are sub judice before this Court. We would also refrain from commenting on the request made by the Judges of this Court for summoning Full Court Meeting and the reaction of respondent No.2 ! o that request as these matters relate to internal management of this Court and have no nexus with the present cases. For the present, it is enough to say that respondent No.2 has failed to bring on record any material before us to establish the possible link between these cases and the cases referred by the learned counsel in which respondent No.2 took cognizance. Similarly, the learned counsel for respondent No.2 were unable to demonstrate on the basis of material before us that the above cases had any connection or linkage with the request made by the Judges to Hon'ble Acting Chief Justice of Pakistan, during the absence of respondent No.2 abroad and the incident followed thereafter. Mere fact, the above cases were filed in the Court at a time when the above mentioned cases were going on in this Court, or the above incident had taken place is not enough to establish any mala fide on the part of petitioners in initiating these proceedings. We have already held while dealing with the objection of respondent No. 2 regarding maintainability of these petitions under Article 184(3) of the Constitution that the petitioners had the necessary locus standi to file these cases. We may further add here that the petitioners have sought information in the nature of quo warranto in these cases. Such proceedings can be initiated by any person who need not be an aggrieved person as held by Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hasan's case, supra. The learned counsel for the respondent No.2 also contended that the above cases were filed to challenge the validity of the appointment of respondent No.2 as the Chief Justice of Pakistan after he had held that office for more than three years and only few months remained in his retirement from the said office. The learned counsel, accordingly, argued that the relief in these cases should be refused on ground of laches also. Delay simpliciter is not enough to decline relief in a case where the entitlement of a person to hold a public office is challenged, because continuance of the person in the public office which he is not entitled to hold under the law, is a continuing wrong which furnishes recurring cause of action till he holds the office unlawfully. The questions relating to locus standi of the petitioners, the alleged mala fide on their part and the laches in filing these cases, are not of much relevance now in these cases as during the course of hearing of these petitions, the Federal Government which is a respondent in these petitions filed its written statement in which it unequivocally took the stand that the appointment of respondent No.2 as Chief Justice of Pakistan, is invalid and against the provisions of the Constitution and asked for a declaration in the terms prayed for by the petitioners. We, therefore, hold that neither the bar contained in Article 199 (5) of the Constitution is attracted in these cases, nor the existence of the provisions of Article 209 of the Constitution come in the way of grant of the reliefs claimed in these cases.

90. Having dealt with the preliminary objections and the plea of bias against some of the Members of the Bench, we now turn to the other contentions of Mr. Abdul Hafeez Prizada, the learned counsel for respondent No.2 in these cases.

91. We first take up the contention of Mr. Abdul Hafeez Pirzada that the provisions of Article 177 of the Constitution do not provide any condition for the appointment of Chief Justice of Pakistan. The learned counsel, accordingly, argued that the Framers of the Constitution having left the appointment of Chief Justice of Pakistan to the President of Pakistan, without prescribing any condition or qualification for such appointment,. it is not open to this Court to add any condition in Article 177 of the Constitution through any interpretative process. The learned counsel very vehemently argued that by reading the rule of seniority as a part of the provisions of Article 177 of the Constitution, the Court will be adding words in the Constitution which is a legislative process. Referring to the decision of this Court in Al‑Jehad Trust case (supra), Mr. Abdul Hafeez Pirzada argued that the rule of legitimate expectancy and seniority laid down by this Court in the appointment of Chief Justices of Provincial High Courts in Al?-Jehad Trust case, supra, is not the ratio of that case but merely a dicta or judicial dicta which has no binding force, According to Mr. Abdul Hafeez Pirzada the ratio deducible from the short order passed in Al‑Jehad Trust case, supra, is reflected in paragraphs 7(i), (ii), (iv), (vii), and (xiii) which related to interpretation of specific provisions of the Constitution, the rest of the observations were either a dicta or judicial dicta of the Court which cannot be placed at the same footing as the ratio decidendi of the case. Mr. Abdul Hafeez Pirzada, further contended that in any case, the appointment of Chief Justices of Provincial High Courts is subject to a consultative process, therefore, the rule of seniority and legitimate expectancy held applicable to such appointment cannot be extended to the appointment of Chief Justice of Pakistan, which is free from any consultative process.

92. The petitioners in the above cases on the other hand contended that there had been a consistent practice/convention since the creation of the State of Pakistan to appoint the senior most Judge of the Supreme Court as the Chief Justice of Pakistan. The petitioners also argued that this Court in Al‑Jehad Trust case (supra), while interpreting the provisions of the Constitution in the light of the convention, relating to the appointment of Chief Justices of Provincial High Courts held that the most senior Judge of the High Court, in the absence of a solid or concrete reason, is entitled to be appointed as the Chief Justice of the High Court. This rationale, according to petitioners, applied with much greater force in the case of appointment of Chief Justice of Pakistan on account of existence of a more consistent practice/convention of appointing the most senior of the Judges of Supreme Court as the Chief Justice. of‑ Pakistan and the provisions of Article 180 of the Constitution which recognized the seniority as the sole criteria for appointment of the Acting Chief Justice of Pakistan. The learned Attorney‑General supported the contentions of the petitioners. It is very important that Federal Government which is respondent in these cases also took up the position that rule of seniority has always been the guiding consideration for appointment to the office of Chief Justice of Pakistan.

93. Mr. Syed Sharifuddin Pirzada, the learned amicus curiae, in his scholarly discourse portrayed the history of conventions followed in the pre?independence and post‑independence periods in the sub‑continent in the appointments of Chief Justices. According to learned amicus in the pre?-independence period whenever a native was appointed as the Chief Justice of a High Court, the rule of seniority was adhered to. In the post‑independence period, the convention to appoint the most senior of the Judges of Supreme Court as the Chief Justice of India was followed consistently in neighbouring country, India except on two occasions when Mrs. Indra Ghandi was Prime Minister of India, but this was greatly resented by the public and Bar Associations of India. In Pakistan, however, since the establishment of Supreme Court and promulgation of the Constitution of 1956, the learned amicus argued, the convention to appoint the most senior Judge of Supreme Court as the Chief Justice of Pakistan was followed consistently and faithfully by the Government and the only deviation from this practice/convention was made in 1994 when the then Prime Minister of Pakistan, Miss Benazir Bhutto, appointed respondent No.2 as Chief Justice of Pakistan on 5‑6‑1994 by superseding three senior Judges of this Court.

94. It is not disputed before us that since promulgation of 1956 Constitution and establishment of Supreme Court, the appointment to the Office of Chief Justice of Pakistan had been made strictly in accordance with the principle of seniority, by appointing the senior most Judge of the Supreme Court of Pakistan as the Chief Justice of Pakistan. Mr. Abdul Hafeez Pirzada, however, argued that conventions cannot be enforced through Courts as they are not law or part of the Constitution. Before dealing with the merits of the above contentions, we consider it proper to deal first with the status of Constitutional conventions. This Court dealt with the status of Constitutional conventions while interpreting various provisions of the Constitution dealing with the appointment of Judges of superior Courts in Al-Jehad Trust case, supra. Ajmal Mian, J. (as he then was) speaking for Court in Al-Jehad Trust case, observed as follows on the binding effect of Constitutional conventions:--

??????????? "25. (a) Adverting to the question of Constitutional conventions, it may be pertinent to know what is the meaning of a Constitutional convention ? and what is its legal status. In this behalf, it may be mentioned that A.V. Dicey in his well known treatise written by him in 1885, namely, 'An Introduction of the Study of the Law of the Constitution' has ? brought out a distinction between the Law of the Constitution and conventions of the Constitution as to the enforceability and non- enforceability in the Court as under:--

??????????? "In an earlier part of this work stress was laid upon the essential distinction between the 'law of the Constitution', which, consisting (as it does) of rules enforced or recognised by the Courts, makes up a body of 'laws' in the proper sense of that term, and the 'conventions of the Constitution', which consisting (as they do) of customs, practices, maxims, or precepts which are not enforced or recognised by the Courts, make up a body nor of laws, but of Constitutional or political ethics; and it was further urged that the law, nor the morality of the Constitution, forms the proper subject of legal study. In accordance with this view, the reader's attention has been hitherto exclusively directed to the meaning and applications of two principles which pervade the law of the Constitution,- namely, the Sovereignty of Parliament and the Rule of Law."

However, at the same time, Dicey recognised the importance of the Constitutional conventions in his above book as follows:--

??????????? "The conventional code of political morality is, as already pointed out, merely a body of maxims meant to secure respect for this principle. Of these .maxims some indeed--such. for example, as the rule that Parliament must be convoked at least once a year--are so closely connected with the respect due to Parliamentary or national authority, that they will never be neglected by any one who is not prepared to play the part of a revolutionist; such rules have received the undoubted stamp of national approval, and their observance is secured by the fact ? that whoever breaks or aids in breaking them will almost immediately find himself involved in a breach of law." ?????

(b) After the above treatise of Dicey written in 1885, with the passage of time, the Constitutional conventions have acquired importance and recognition of the Courts. Sir. W. Ivor Jennings, in his treatise under ? the title "The Law and the Constitution" has defined the purpose of the Constitutional conventions as under:-

"The short explanation of the Constitutional conventions is that they provide the flesh which clothes the dry bones of the law; they -make the legal Constitution work; they keep it in touch with the growth of ideas. A Constitution does not work itself; it has to be worked by men. It is an instrumental of national cooperation, and the spirit of cooperation is as necessary as the instrument. The Constitutional conventions are the rules elaborated for effecting that cooperation, Also, the effects of a Constitution must change with the changing circumstances of national life. New needs demand a new emphasis and a new orientation even when the law remains fixed. Men have to work the old law in order to satisfy the new needs. Constitutional conventions are the rules which they elaborate.

Sir William Holdsworth has explained these characteristics. 'Conventions' must grow up at all times and in all places where the powers of Government are vested in different persons or bodies wherein other words there is a mixed Constitution. 'The constituent parts of a State', said Burke, 'are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole State is bound to keep faith with separate communities'. Necessarily conventional rules spring up to regulate the working of the various parts of the Constitution, their relation to one another and to the subject. And not only will conventions spring up in these circumstances, but they will always have two common characteristics. In the first place, it is at these conventions that we must look if we would discover the manner in which the Constitution works in practice. They determine the manner in which the rules of law, which they presuppose, are applied, so that they are, in fact, the motive power of the Constitution. In the second place, these conventions are always directed to secure that the Constitution works in accordance with the prevailing Constitutional theory of the time."

(c) K.C. Wheare, F.B.A. in his book under the caption "The Statute of Westminster and Dominion Status", Fifth Edition, has dilated on the question of convention as under:-

"And, as M. de Fleuriau remarked: 'Lly a du vrai dans cette boutade'. These non-legal rules are given a variety of names, as has been indicated. It appears convenient to adopt two terms, usage and convention. By convention is meant an obligatory rule; by usage, a rule which is no more than the description of a usual practice and which has not yet obtained obligatory force. A usage, after repeated adoption whenever a given set of circumstances recurs, may for a sufficient reason acquire obligatory force and thus become a convention. But conventions need not have a prior history as usages. A convention may, if a sufficient reason exists, arise from a single precedent. Or again it may result from an agreement between the parties concerned, declared and accepted by them as binding .........

The two kinds of rule again may impinge upon each other in such a way that the operation of the rule of strict law is modified by the operation of the non-legal rule. A power which, juridically, is conferred upon a person or body of persons may be transferred, guided, canalized by the operation of non-legal rules. In this way a non-legal rule may decide the ends for which and the organs through which some power, which owes its existence to a rule of strict law, may properly be exercised. The rule of strict law is not completely nullified. It is combined with a non-legal rule to make a new Constitutional rule. The working of the cabinet system in Britain illustrates this type of cooperation. The legal power in the hands of the King, by prerogative or under statute, to perform certain (not very extensive) functions in the administrative Government of the country is exercised, by usage and convention, through on the advice of Ministers responsible to Parliament. In the same way the exercise of the legal executive powers of the President in France has, Largely as the result of usage and convention, been transferred to Ministers in Parliament, and the effective exercise of the legal power o1 the College of Electors in the United States to choose a President has been transferred to the electorate. "

(d) The same author K.C. Wheare in his book under the title "Modern Constitutions" has dealt with the question of Constitutional conventions as under:-

"The distinctions which have been drawn in the preceding paragraphs will be illustrated when we come to consider the various ways in which usage and convention operate to affect the law of the Constitution. The first way in which usage and convention show their effect is in nullifying a provision of a Constitution. This might be expressed by saying that convention paralyses the arm of the law. It is essential to stress that it does not amend or abolish the law It does not impute the limb; it merely makes its usage impossible. A well-known example of this effect of convention is found in the fact that in many Constitutions the legal power of the Head of the State to veto or refuse his assent to laws passed by the Legislature is nullified by convention. In the Constitutions of Denmark, Norway and Sweden, the King is given certain powers to refuse assent to bills passed by the Legislature, but in all three cases it is now agreed that he may not exercise these powers. The last occasion upon which the King of Denmark refused assent to a bill was in 1865, and although the King of Sweden vetoed a bill in 1912, he acted on that occasion upon the advice of his Ministers. In Holland and Belgium similarly the power of the monarch to veto legislation has been nullified by convention.

In the Constitutions of those members of the British Commonwealth which have retained the monarchical form of Government, it is usual to find powers granted either to the Queen or to her representative, the Governor-General, to refuse his assent to a bill. In all these cases it is accepted that, by convention, this power will not be exercised."

(d) Reference may also be made to the book of Professor Colin R. Munro under the caption "Studies in Constitutional Law" wherein he has dilated upon the question of Constitutional convention with reference to the views of various authors and pointed out some of the Constitutional conventions obtaining in United States, Australia etc. It may be advantageous to reproduce the following passages from his above book:-

" For example, in the United States, according to the Constitution (Article 11 and Amendment XII), the President is indirectly elected by representatives of the States in electoral colleges. In practice. however the President is elected by popular vote, and the members of the electoral colleges are obliged to cast their votes accordingly, In Australia, the Constitution provides for the appointment of the Governor-General by the Sovereign of the United Kingdom, but by convention the Sovereign is obliged to act on the advice of the Australian Prime Minister. If that is a straightforward convention, many others are not. The Australian Governor-General in 1975, Sir John Kerr, dismissed Mr.Gough Whitlam's Government, on the ground that, as it had been refused supply by the Senafe, it did not command the confidence of the Parliament, and should have resigned or advised dissolution. However, his action was controversial, to say the least, and in that Constitutional crisis there was ample scope for debating whether the Prime Minister and the Governor-General respectively had acted consistently with, or contrary to, what conventions required.

It is simply a natural process for other rules and practices to develop alongside the laws of the Constitution. As Sir Ivor Jennings put it:

'The laws provide only a framework; those who put the laws into operation give the framework a meaning and fill in the interstices. Those who take decisions create precedents which others tend to follow, and when they have been followed long enough they acquire the sanctity and the respectability of age. They not only are followed but they have to be followed ... ... .. ... ... ... ... .. ... ... ... ... .. ... ... In the same way, Dicey was concerned to demarcate the lawyer's special preserve in the study of the Constitution. He was fully aware that the rules of the Constitution comprised different classes, he conceded that some conventions and practices were as important as laws, and observed that 'a lawyer cannot master even the legal side of the Constitution without paying some attention to the nature of those Constitutional understandings' and he devoted Part III of Law of the Constitution to the discussion of conventions. It is quite unjust, although regrettably not unknown, for Dicey to be accused of promoting a narrowly legal approach to study. But he did say that the lawyer's proper function was the exposition of legal rules, whereas 'with conveiltions or understandings he has no direct concern'.

However, his distinguishing between laws and conventions has been criticised. Unless the distinction is abandoned, according to one modern writer, 'it is impossible to present Constitutional law as a coherent subject or relate it in a meaningful way to the functions it has To fulfil or the social and political context in which it has to operate'. To this it may be answered that if in fact laws and conventions are different in kind, then an accurate and meaningful picture of the Constitution will only be obtained, if the distinction is made. If the distinction is blurred, analysis of the Constitution is less complete, which cannot be to the benefit of lawyers or political scientists .... .. ... The late professor J.D.B. Mitchell built up further arguments of this sort:

Conventions cannot be regarded as less important than rules of law. Often the legal rule is the less important. In relation to subject matter the two types of rule overlap: in form they are often not clearly distinguishable .... ... ... ., ... ... ... .. ... ... .... very many conventions are capable of being expressed with the precision of a rule of law, or of being incorporated into law. Precedent is an operative in the formation of convention as it is in that of law. It cannot be said that a rule of law is necessarily more certain than is a convention. It may therefore be asked whether it is right to distinguish law from convention ???????? ...... ????? "

The Late O. Hood Philips in his well known treatise under the caption "Constitutional. and Administrative Law", 7th Edition, has very exhaustively dealt with the question of Constitutional conventions as under:-

"Importance of Constitutional Conventions:

The word 'conventions', as used by Constitutional lawyers, refers to rules of political practice which are regarded as binding by those whom they concern-especially the Sovereign and Statesmen--but which would not be enforced by the Courts if the matter came before them. The lack of judicial enforcement distinguishes conventions from laws in the strict sense. This is an important formal distinction for the lawyer, though the politician may not be so interested in the distinction. Privileges enforced by each House are also excluded from the definition of conventions.

Conventions are found to a greater or lesser extent- in most countries that have written Constitutions. This is so not only in the Commonwealth countries but also, for example, in the United States. There the method of electing the President and the manner of choosing the President's Cabinet are governed largely by convention. What is characteristic of the British Constitution is the extremely important part played by conventions. Not only do the British have no written Constitution, but they have been reluctant to stereotype their rules of Government in the form of statutes. Many important political developments have been effected since 1688 without recourse to legal forms at all. It is Constitutional conventions that describe and explain how the Constitution works, how it lives and grows. Their general purpose is to adapt structure to function. In this way the strong monarchy of 1688 has become a limited monarchy with responsible Parliamentary Government ... ... .. .. ... '

"Purpose of Constitutional conventions:

Conventions are a means of bringing about Constitutional development without formal changes in the law. This they often do by regulating the exercise of a discretionary power conferred on the Crown by the law. It must not be supposed that conventions are peculiar to unwritten Constitutions. They are found to a greater or lesser extent in written Constitutions as well. Canada and Australia, for example, observe the main British Constitutional conventions, and many conventions have been developed in the United States relating to such matters as the method of electing the President, his choice and use of a Cabinet, and 'senatorial courtesy' in making appointments to office. This informal method of change is more adaptable than a series of statutes or Constitutional amendments. The general tendency is towards democracy, due regard being had to the protection of minorities and their right to be heard.

The ultimate object of most conventions is that public affairs should be conducted in accordance with the wishes of the majority of the electors. The reason why the Ministry must be chosen from the party or parties enjoying a majority in the commons is that, on the assumption that the majority of the Commons reflect the views of the majority of the electors, . . . . . . ... . "

(b) It will not be out of context to lift from para.450 of the judgment of the Indian Supreme Court in the case of Supreme Court Advocates-on Record Association v. Union of India AIR 1994 SC 268 the then Indian President of the Constituent Assembly Dr. Rajendra Prasad's relevant portion of the speech delivered by him while moving bill for the adoption of Indian Constitution in 1.950 which throws light on the importance of Constitutional conventions as under:

"We have prepared a democratic Constitution. But successful working of democratic institutions requires in those who have to work them willingness to respect the view points of others, capacity for compromise and accommodation. Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. The way in which, we have been able to draw this Constitution without taking recourse to voting and to divisions in lobbies strengthens that hope ... ... .. ... ... ..

(g) I may also quote para.368 from the above judgment of the Indian Supreme Court (Kuldip Singh's opinion) which reads as under:-

'368. We are of the view that there is no distinction between the Constitutional Law' and an established 'Constitutional convention' and both are binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the 'Constitutional law' of the land and can be enforced in the like manner."

26. (a) The President of the Supreme Court Bar Association, Mr. Muhammad Akram Sheikh, has referred to the book under the title 'Constitutional Conventions'--The Rules and Forms of Political Accountability by Geoffrey Marshall. He has also furnished photostat copy of seven pages relating to conventions without the title of the book (probably it is from the book under the title 'Constitutional and Administrative Law', Sixth Edition by Rodney Brazier. The relevant portion from the former book reads as under:-

"Thirdly, conventions may be the subject of enquiry in the course of statutory construction. The consideration of convention in British Coal Corporation v. The King (1935) AC 500 could be considered in this light. It led to the conclusion that in passing the Judicial Committee Act of 1833, Parliament had a particular intention, namely to treat the convention as to the way in which its advice was accepted by the Crown. "

The relevant extracts from the latter book read as follows:-

"These examples suggest that the distinction between law and convention is reasonable clear. But in a number of contexts the distinction is blurred. In particular, Dicey was exaggerating when he said that conventions were 'not recognized' by the Courts. The Courts do sometimes take cognizance of conventions; sometimes they use them as aids to interpretation. "... .... ... ... ... ... ... . ... ... ... ... ... ...

A striking illustration of a Constitutional convention having as much effect in practice as strict law comes from Canada. The Canadian Government sought patriation of the Constitution in the early 1980s, but agreement on the new settlement could not be reached with the Provinces. When the Government decided to proceed without it some of the Provinces challenged the legality of the Government's actions in the Courts. The Supreme Court held that, although no rule of law existed which established Provincial consent as a prerequisite to any Constitutional amendment, there was a convention that such consent would be obtained. The Government thereupon delayed its plans and held further negotiations in which nine of the ten Provinces agreed to revise Federal proposals which formed the basis of Canada's 1983 Constitution." .

(c) Mr. Riazul Hassan Gilani, learned Advocate Supreme Court who has appeared for Lahore High Court Bar Association, has dealt with exhaustively as to .the legal status of conventions under the Islamic Jurisprudence. According to him, the conventions have binding force in Islam. He pointed out the factum that after the advent of Islam, the customs or usages which were then prevalent inter alia in Arabian territory and which were not contrary to Islamic concept, were retained and were given binding legal effect. He has referred to the following books:-

(i) Student's English-Arabic Dictionary, Second Edition, printed by Catholic Press at Beirut.

"Convention, n.

"Convention, adj

The relevant portions are:

(ii)

? The relevant portion is .,are

?

? Translation by Mr. Gilani

'The usage shall qualify the text.'

??????????? The relevant portion is:-

Translation by Mr. Gilani:

77. The usage can qualify the text.'

(v) ??????? The Mejelle translated by C.R. Tyser, B.A.L. President District Court of Kyrenta and two others.

The relevant portions are ;

"37. The use of men is evidence according to which it is necessary to act.

43. A thing known by common usage is like a stipulation which has been made.

45. What is directed by custom is as though directed by law. See 2 C. L.R.140."

The relevant portion is:-

The relevant portion is:-

(viii) The Principles of Muhammadan Jurisprudence. (According to the Hanafi, Maliki Shafi's and Hanbali Schools) by Abdur Rahim, M.A., 1968 Edition:

"Section II.--Customs and usaees.--Those customs and usages of the people of Arabia, which were not expressly repealed during the lifetime of the Prophet, are held to have been sanctioned by the Law-giver by His silence. Customs ('urf ta'amul, 'adat) generally as source of laws, are spoken of as having the force of Ijma', and their validity is based on the same texts as the validity is based on the same texts as the validity of the latter. It is laid down in 'Hedaya' that custom holds the same rank as Ijma' in the absence of an express text, and in another place in the same book, custom is spoken of as being the arbiter of analogy. "

(ix) The case of Pakistan and others v. Public at Large and others PLD 1987 SC 304:

Wherein it has been retreated that in the case of Pakistan v. Public at Large (PLD 1986 SC 240) the Shariat Appellate Bench of this Court approved the use of Rules of Masalah and Urf amongst others. It is also held that if the controversy can be resolved by direct resort to Holy Qur'an and Sunnah, it is not necessary to invoke Rules of Masalah and Urf.

27. From the abovequoted treatises on the Constitutional Law and the well-known books on the Islamic Jurisprudence, the following principles/inferences are deducible:-

(i) ???????? That AN. Dicey in 1885 in his aforesaid treaties has brought out distinction between the Law of the Constitution consisting of Rules enforced or recognised by Courts and the Conventions of the Constitution consisting of customs, practice, maxims or precepts which are not enforced or recognised by the Courts. However, at the same time, he was of the view that the conventional code of political morality has been accepted and acted upon by the politicians and that their observance is secured by the fact that whoever breaks or aids in breaking them, will almost immediately find himself involved in a breach of law.

(ii) Late O. Hood Philips in his aforementioned treatise under caption "Constitutional and Administrative Law", in its earlier part quoted at page 56 hereinabove, which was relied upon by M/s. Qazi Jamil and Mr. Aitzaz Ahsan, has brought out the above distinction between Constitutional Law and Constitutional convention as to their enforceability and non-enforcibility through the Courts of law. But he did not adhere to the above view as in the latter part of the treatise it has been highlighted that Constitutional conventions are a means of bringing about Constitutional development without formal changes in the law; this they often do by regulating the exercise of a discretionary power conferred on the Crown by the law. He also highlighted that the Constitutional conventions are not peculiar to unwritten Constitutions but they equally apply to the written Constitutions. He further opined that the ultimate object of most conventions is that public affairs should be conducted in accordance with the wishes of the majority of electors.

(iii) Sir W. Ivor Jennings in his afore-cited treatise observed that the short explanation of the Constitutional conventions is that they provide the flesh which clothes the dry bones of the law; they make the legal Constitution work; they keep in touch with the growth of ideas.

(iv) Sir William Holdaworth was of the view that conventions must grow up at all times in all places where the powers of Government are vested in different persons or bodies.

(v) The conventional rules spring up to regulate the working of various parts of the Constitution. They ensure that the Constitution works in practice in accordance with the prevailing Constitutional theory of the time. They guide, canalise the exercise of power vested in the State functionaries.

(vi) The Constitutional conventions can even nullify or paralyse a provision of the Constitution, for example, in many Constitutions, the legal power of the head of the State to veto or refuse his assent to laws passed by the Legislature is nullified by conventions like in Denmark, Norway and Sweden where the Kings though have the power to refuse to give assent to any law but by virtue of conventions they refrain from doing so. Same is the case of Queen in England or her representative the Governor-General in Australia.

(vii) ????? That the Constitutional conventions may even change the mode of operation of a Constitutional provision, for example, in United States, according to the Constitution (Article II and Amendment XII) the President is indirectly elected by representatives of the State in electoral ? colleges but in practice the President is elected by popular votes and the members of electoral colleges are obliged to cast their votes accordingly. Similarly, in Australia, the Constitution provides for the appointment of Governor-General by the Sovereign of the United Kingdom but by conventions the Sovereign is obliged to act on the advice of the Australian Prime Minister.

(viii) That in fact the Courts accord the recognition to Constitutional conventions either by pressing into service the same while construing a Constitutional provision or by giving effect to a .convention in the absence of any express provision in the Constitution as the Supreme Court of Canada did in early 1980 when it held that although no rule of law existed which established provincial consent as a prerequisite to any Constitutional amendment but there was a convention that such consent would be obtained. As a result of the above judgment, the Government delayed its plan to carry out the amendment and entered into further negotiations and resolved the matter by consensus of nine out of ten Provinces.

(ix) That the convention is recognised and has legal binding force under the Islamic Jurisprudence as is evident from the abovequoted portions of aforesaid books/treatises on Islamic Jurisprudence.

28. This Court has also affirmed the factum that conventions under Islamic Jurisprudence have the force of law inter alia in the above case of Pakistan and others v. Public-at-Large. This seems to be also in consonance with Article 8 of the Constitution, clause (1) of which brackets "custom or usage" with law by providing any law or any custom or usage having the force of law in so far as it is inconsistent with the rights conferred by this Chapter shall to the extent of such inconsistency be void. The above Chapter relates to the Fundamental Rights. In other words, the above clause (1) of Article 8 of the Constitution is founded on the assumption that custom or usage has the force of law as the law has itself but they will not be enforced to, the extent of inconsistency with the Fundamental Rights.

29. I am inclined to hold that the distinction which was brought out by A.V. Dicey in 1885 between laws and conventions as to the enforcibility and non-enforcibility by the Courts is no longer bolding the field. With the passage of time, the other eminent Jurists have not adhered to the above distinction. They have emphasised the importance of Constitutional conventions for proper operating/ functioning of the Constitutions. Jennings has put it very beautifully by explaining that the Constitutional conventions provide "felsh which clothes the dry bones of the law; they make the legal Constitution work; they keep in touch with the growth of ideas". The above view has been reiterated by the other Professors/Jurists of international repute. Even the President of Indian Constituent Assembly; Dr. Rajendra Prasad, while introducing a bill for the adoption of Indian Constitution in 1950, pointed out in his speech that "many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions". The Indian Supreme Court, after reviewing the treatises on Constitutional law and the case-law in the case of Supreme Court Advocates-on-Record Association (supra) has held that there is no distinction between the "Constitutional law" and on established "Constitutional convention" and both are binding in the field of their operation. I am also of the view that the Courts, while construing a Constitutional provision, can press into service an established Constitutional convention in order to understand the import and the working of the same, if it is not contrary to the express provision of the Constitution.

It is also evident that under Islamic Jurisprudence, the conventions which were not contrary to Holy Qur'an and Sunnah, were recognised from the very inception and they were given binding effect. In this view of the matter, it will be appropriate to refer to the relevant conventions, if any, while construing various Constitutional provisions relating to the Judiciary. "

95. We are inclined to agree with the conclusion that a constitutional convention once established has the same binding effect as a Constitutional provision. We may, however, add that in the case of an unwritten Constitution, conventions play a more prominent and dominant `role in the interpretation of Constitutional provisions than in the case of written Constitution. Therefore, while explaining the Constitutional provision of a written Constitution on the basis of a convention, it must be shown that either a convention has developed with the passage of time side by side with the enforcement and interpretation of I n the Constitution or a convention already existing on the date of enforcement of a written Constitution, has either received a statutory, recognition in the N Constitutional document or has been established as a Constitutional convention on account of conscious and deliberate obedience of the convention by those who are charged with the duty of interpreting or enforcing the Constitution. Therefore, when an already existing convention is followed in interpreting a provision of a written Constitution consistently and consciously over a length of time by those who are responsible under the Constitutional mandate to interpret and enforce the said provision of Constitution, the convention is established as a Constitutional convention and any breach thereof may be treated by the Courts as a breach of the provision of the Constitution to which the convention relates. In the light of the above enunciated principles we now proceed to examine the provisions relating to the appointment of the Chief Justice of Pakistan in the Constitution. Prior to the enforcement of the Constitution, we had two earlier Constitutional documents which governed the State of Pakistan, namely, the Constitution of the Islamic Republic of Pakistan 1956, (hereinafter to be referred as 'the Constitution of 1956') and the Constitution of Islamic Republic of Pakistan of 1962 (hereinafter to be referred as 'the Constitution of 1962). After the establishment of the State of Pakistan in 1947, Sir Abdur Rashid, who became the Chief Justice of Lahore High Court in 1946 on the transfer of Sir Trevor Havis to Calcutta, continued as the Chief Justice of the said Court. When the question of administrating of the oath of office of Quaid-e-Azam, as the first Governor-General of Pakistan, arose in 1947 Sir Abdur Rashid being the senior 'most Judge was nominated for the occasion. On the creation of Federal Court of Pakistan, on 27-6-1949, Sir Abdur Rashid, who was the senior most Judge of Pakistan, was appointed as the first Chief Justice of Pakistan on the basis of existing convention of appointing the senior most Judge to the top position. No doubt, after the retirement of Sir Abdur Rashid, Muhammad Munir, J. who was then the Chief Justice of Lahore High Court was appointed as the Chief Justice of Pakistan ignoring the rule of seniority but this case is distinguishable for two reasons. Firstly, the then senior most Judge of the Federal Court had consented to the appointment of Muhammad Munir, J. as the Chief Justice of Pakistan, and secondly, neither the Supreme Court of Pakistan had come into existence by then nor the Constitution of 1956 was enforced so as to examine the appointment of Muhammad Munir, J. in the light of Constitutional provisions. When the Constitution of 1956 was enforced and the Supreme Court of Pakistan came into existence, Muhammad Munir, C.J., who was already the Chief Justice of Federal Court and the Chief Justice of Pakistan, continued as the Chief Justice of Pakistan. The two relevant provisions in the Constitution of 1956 relating to the appointment of Chief Justice of Pakistan and the Acting Chief Justice of Pakistan, contained in Articles 149 and 152, ibid, were as follows:-

"149.---(1) The Chief Justice of Pakistan shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice.

(2) ??????? A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of Pakistan, and---

(a) ??????? has been for at least five years a Judge of a High Court or two or more High Courts in succession; or

(b) ??????? has been for at least fifteen years an Advocate or a Pleader of a High Court, or of two or more High Courts.

(3) ??????? For the purpose of computing any such period as is referred to in sub- clause (a) of clause (2) there shall be included any period during which a person has been a Judge of a High Court in Pakistan before the Constitution Day.

(4) ??????? For the purpose of computing any such period as is referred to in sub clause (b) of clause (2) there shall be included any period during which a person was an Advocate or a Pleader of a High Court in Pakistan ? before the Constitution Day or of any High Court in British India."

????????.

????????..

????..

"152. If the Office of Chief Justice of Pakistan becomes vacant, or if the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, those duties shall, until some person permanently appointed to the vacant office has entered on the duties thereof, or until the Chief Justice has resumed his duties, as the. Case may be, be performed by such one of the other Judges of the Supreme Court as the President may appoint as Acting Chief Justice.

???????????

96. The Constitution of 1962 which replaced the Constitution of 1956 contained the following relevant provision for appointment of Chief Justice of Pakistan and Acting Chief Justice of Pakistan in Articles 50 and 53 respectively, is follows:--

"50.---(1) The Chief Justice of the Supreme Court shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice.

(2) ??????? A person shall not be appointed as a Judge of the Supreme Court unless he is a citizen of Pakistan and---

(a) ??????? he has for a period of? or for periods aggregating, not less than five years been a Judge of a High Court (including a High Court that existed in Pakistan at any time before the commencing day); or

(b) ??????? he has for a period of, or for periods aggregating, not less than fifteen years been an Advocate or Pleader of a High Court (including a High Court that existed in Pakistan at any time before the commencing day and any High Court that existed in British India before the fourteenth day of August, one thousand nine hundred and forty-seven)."

"53. At any time when---

(a) ??????? the office of Chief Justice of the Supreme Court is vacant; or

(b) ??????? the Chief Justice of the Supreme Court is absent or is unable to perform the functions of his office due to illness or some other cause, such other Judge of the Supreme Court as the President may appoint shall act as Chief Justice."

97 ???????? Then came the Constitution which provided for appointment of the chief Justice of Pakistan and the Acting Chief Justice of Pakistan in Articles 177 and 180 (ibid), respectively, as follows:-

"177.--(1) The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.

(2) ??????? A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and---

(a) ??????? has for a period of, or for periods aggregating, not less than five years been a Judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b) ??????? has for a period of, or for periods aggregating, not less than fifteen years been an Advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day)."

?????.

?????.

?????..

"

180. At any time when----

(a) ??????? the office of Chief Justice of Pakistan is vacant ; or

(b) ??????? the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause,

??????????? the President shall appoint the most senior of the other Judges of the Supreme Court to act as Chief Justice of Pakistan. "

98. Before examining the abovementioning provisions in the Constitutions of 1956, 1962 and 1973, respectively, dealing with the appointment of Chief Justice of Pakistan, it will be advantageous to refer to the appointments of Chief Justices of Pakistan made under those provisions in order to understand the true import of those provisions and the Constitutional convention applied in this behalf. The details of the appointments of Chief Justices of Pakistan with their respective period of office is as follows:

S.No. Name of the Chief Justice ?????????????????????????????????? Period the C.J. remained in office.

1. ???????? Mr. Justice Abdur Rashid ????????????????????????????????? 27-6-1949 to 28-6-1954

2 ????????? Mr. Justice Muhammad Munir ?????????????????????????? 29-6-1954 to 20-5-1960

3. ???????????? Mr. Justice Muhammad Shahabuddin ???????????? 3-5-1960 to 12-5-1960

4 ????????? Mr. Justice A.R. Cornelius ???????????????????????????????? 13-5-1960 to 29-2-1968

5. ???????? Mr. Justice S.A.Rahman ??????????????????????????????????? -3-1968 to 3-6-1968

6 ????????? Mr. Justice Fazal--Akbar ?????????????????????????????????? 4-6-1968 to 17 ?? .1968

7. ???????? Mr. Justice Hamoodur Rehman ????????????????????????? 18-11-1968 to31-10-1975

8 ????????? Mr. Justice Muhammad Yaqoob Ali ?????????????????? 1975 to 22-9-1977

9 ????????? Mr. Justice Sh.Anwarul Haq ????????????????????????????? 23-9-1977 to 25-3-1981

10 ???????? Mr. Justice Muhammad Haleem ???????????????????????? 25-3-1981 to 31-12-1989

11. ??????? Mr. Justice Muhammad Afzal Zullah ????????????????? 1-1-1990 to 18-4-1993

??????????????????????????????????????????????????????????????????????????????????? (Proceeded on Leave from

??????????????????????????????????????????????????????????????????????????????????????????????? 17-4-1993)

12. ??????? Mr. Justice Dr. Nasim Hassan Shah ?????????????????? 1,7-4-1993 to 14-4-1994

13. ??????? Mr. Justice Sajjad Ali Shah ??????????????????????????????????????????? 5-6-1994

99. From the abovementioned chart, it is quite clear that after the establishment of Supreme Court of Pakistan in 1956, the appointment to the office of Chief Justice of Pakistan between the period from 1956 to 1994, was invariably made following the rule of seniority. The fact that the appointment to the office of Chief Justice of Pakistan was always made on the basis of the well established convention of appointing the senior most Judge of the Supreme Court, as the Chief Justice of Pakistan, was explicitly admitted in the compromise formula submitted before this Court in the case of Federation of Pakistan v. M.D. Tahir, Advocate (1990 SCMR 189) on behalf of the Federation. We have already reproduced earlier in this judgment, the details of this compromise and item No.IV of the compromise related to the appointment of the Chief Justice of Pakistan. We may now proceed to examine the Constitutional provisions relating to the appointment of Chief Justice of Pakistan in the three Constitutions of Pakistan, namely, the Constitution of 1956, the Constitution of 1962 and the Constitution. It is significant that the provisions relating to the appointment to the, office of Chief Justice of Pakistan in all the three Constitutions were almost identical. Article 149 of Constitution of 1956, Article 50 of the Constitution of 1962 and Article 177 of the Constitution are couched in identical language and provide that the Chief Justice of Pakistan will be appointed by the President of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President after consultation with the Chief Justice. In spite of the fact that rule of seniority is not mentioned in Articles 149, 50 and 177 of the Constitution of 1956, the Constitution of 1962 and the Constitution respectively, yet from 1956 to 4-6-1994 the appointment to the office of Chief Justice of Pakistan was always made on the basis of seniority. The learned amicus curiae in his arguments has referred to the existing convention at the time of creation of the States of India and Pakistan, where under senior most Judges were appointed as Chief Justices of the High Courts. Although this existing convention to appoint the senior most Judge as the Chief Justice did not receive statutory recognition in the Constitution of Pakistan but the convention to appoint the senior most Judge of Supreme Court as the Chief Justice of Pakistan has come to be established as a Constitutional convention through its consistent application by the Functionaries responsible under the Constitution for making the appointment to the office of Chief Justice of Pakistan. We may also mention here that the Federal Government not only in the case of M.D. Tahir, Advocate (supra) came out with a unequivocal statement before this Court in the form of agreed formula that the senior most Judge of the Supreme Court is to be appointed as the Chief Justice of Pakistan and would be superseded only in case there is anything adverse on record. against him, but in the above cases also the Federal Government has taken a categorical stand that while making appointment to the office of Chief Justice of Pakistan, the rule of seniority has always been adhered to and is considered as binding. This stand of the Federal Government is fully borne out from the chart reproduced by us earlier, showing the appointments of Chief Justices of Pakistan since the establishment of Supreme Court of Pakistan. This chart shows that in order to give effect to the convention of appointing the senior most Judge as Chief Justice of Pakistan, the Government made appointment of Chief Justice of Pakistan even for a period which was sometimes for a few months or even less. We may also mention here that unlike the provision of Article 180 of the Constitution which provides for appointment of the senior most Judge of the Supreme Court as the Acting Chief Justice of Pakistan, in the event of a vacancy in the office of Chief Justice on account of inability of the Chief Justice to discharge the functions of his office for any other cause, the provisions in the Constitution of 1956 and Constitution of 1962 did not provide for appointment of the senior most Judge of the Supreme Court as Acting Chief Justice of Pakistan. Under the Constitution of 1956 and the Constitution of 1962, any Judge of the Supreme Court could be appointed as the Acting Chief Justice in the event of vacancy ox inability of Chief Justice to discharge the functions of his office. The factual position, however, was, that in spite of these provisions, the senior most Judge of the Supreme Court used to be appointed as the Acting Chief Justice following the well-established convention of appointing the senior most Judge of Supreme Court as the Chief Justice of Pakistan. By providing in Article 180 of the Constitution for appointment of the senior most Judge as the Acting Chief Justice of Pakistan, the Legislature only accorded recognition to well established convention of appointing the senior most Judge of Supreme Court as the Chief Justice of Pakistan. The change brought about by Article 180 of the Constitution is in keeping with the established convention of appointing the senior most Judge as the Chief Justice of Pakistan. The convention to appoint the senior most Judge as the Chief Justice of Pakistan is also in consonance with the concept of independence of Judiciary as the Chief Justice of Pakistan is the pivotal figure in the whole system of administration, of justice. All appointments in the superior Judiciary are made in consultation with Chief Justice of Pakistan. The Chief Justice of Pakistan decides the timings and the manner of hearing of cases by the apex Court. If the rule of seniority is not followed in appointment to the office of the Chief Justice of Pakistan, it will leave the door open for every Judge of the Supreme Court to aspire for the office of Chief Justice of Pakistan creating a situation where Judges may start feeling that by having good relations with the Government in power they may be able to get the office of Chief Justice of Pakistan. The possibility of a junior most Judge of the Court being appointed as the Chief Justice of Pakistan in the scenario, may not be totally ruled out. Similarly, the possibility that the Government in power may attempt to seek appointment of a more cooperative Judge as the Chief Justice of Pakistan, will also be not out of place. This would totally destroy the discipline and comity amongst the Judges of the Court and the independence of the institution besides, shaking the public confidence in the Courts and tarnishing its image as a neutral arbiter in disputes between citizen and citizen and between citizen and the Government. The convention to appoint the senior most Judge as the Chief Justice of Pakistan on the contrary discourages all inroads in the judicial system by individuals or the Government through speculative process, preserves certainly in the system, . promotes harmony and smooth working of the Court. and inspires pubic confidence in the institution. This Court in Al-Jehad Trust case (supra) while considering the provisions in the Constitution regarding appointment of Chief Justices of Provincial High Courts, where too the seniority is not mentioned as the criterion, held on the basis of convention that the senior most Judge in the absence of any concrete or solid reason, has to be appointed as the Chief Justice. This rationale applies with much greater force in the case of appointment of Chief Justice of Pakistan on account of more consistent convention followed in the past in the appointment of Chief Justice of Pakistan and the provisions of Article 180 which recognizes seniority as the sole criterion for appointment of Acting Chief Justice of Pakistan.

100. Mr. Shahid Orakzai, a freelance journalist arguing on behalf of public at large contended that from the composition of Supreme Judicial Council and reading the provisions of Article 209 of the Constitution it is quite clear that the seniority of the Chief Justice of Pakistan is determined not by virtue of his being senior amongst the Judges of the Supreme Court but by virtue of his appointment as Chief Justice of Pakistan. Therefore, according to Mr. Orakzai, the seniority amongst the Judges of the Supreme Court cannot be a criterion for appointment as the Chief Justice of Pakistan. Referring to the provisions of Article 180 of the Constitution, Mr. Orakzai, contended that mere fact that the senior most Judge of the Supreme Court is to be appointed as the Acting Chief Justice of Pakistan in the event of a vacancy in the office of Chief Justice or on account of inability of Chief Justice to perform the functions of his office for any reason, does not mean that in the appointment of permanent Chief Justice the same criteria would be applied. He went on to argue that the explanation appended to Article 209 of the Constitution clarifies that in determining the seniority between the two Chief Justices of the High Courts for the composition of Supreme Judicial Council, the date of appointment as Chief Justice of High Court is made relevant and the date of appointment as Acting Chief Justice is excluded from consideration, which according to Mr. Orakzai, clinches the issue that the acting appointment has no relevance to the permanent appointment. No doubt in the composition of Supreme Judicial Council, the Chief Justice is placed at No. 1, while the next two most senior Judges of Supreme Court take the places after Chief Justice of Pakistan but we fail to understand how from this arrangement in the composition of Supreme Judicial Council it follows that Chief Justice of Pakistan need not be senior most amongst the Judges of the Supreme Court. Article 209 of the Constitution does not deal with the appointment of Chief Justice of Pakistan, and therefore, the argument that the senior most Judge' of Supreme Court in the absence of any strong or concrete reason, should be appointed as the Chief Justice of Pakistan .has to be resolved with the reference to the language of Article 177 of the 'Constitution which directly deals with the appointment of Chief Justice of Pakistan. We have already examined in detail the relevance of rule of seniority in the appointment of Chief Justice of Pakistan with reference to Article 177 of the Constitution and for those reasons, we are unable to agree with the contentions of Mr. Shahid Orakzai.

101. From the preceding discussion, it follows that the convention to appoint the senior most Judge of the Supreme Court as the Chief Justice of Pakistan, has come to be recognized as the well-established Constitutional convention. wad therefore, any deviation or breach of this convention by the Appointing 'P Authority under the provisions of Article 177 of the Constitution, would amount to the violation of the Constitutional provisions relating to the appointment of Chief Justice of Pakistan. We, therefore, find no room for the argument that the rule of seniority cannot be extended while interpreting the provisions of Article 177 of the Constitution.

102. The next contention of Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No.2, is that the question of appointment of Mr. Justice Sajjad Ali Shah, as the Chief Justice of Pakistan is a past and closed transaction which cannot be reopened now. In support of his contention Mr. Abdul Hafeez Pirzada firstly contended that this question did come up for consideration before this Court in AI-Jehad Trust case (supra), but was not deliberately decided, and therefore, it cannot be reopened now by another Bench of this Court. The second objection of Mr. Abdul Hafeez Pirzada is that at the time Mr. Justice Sajjad Ali Shah was appointed as the Chief Justice of Pakistan, he was at No.4 in the seniority list of Judges of this Court. None of the Judges who were senior to Mr. Justice Sajjad Ali Shah, raised any objection either at the time of his appointment as Chief Justice of Pakistan or at any time thereafter. The two senior Judges out of three in the meantime retired and the last Senior Judge has worked with respondent No.2 on different Benches presided over by respondent No.2 including the one which delivered the judgment in Al-Jehad Trust case (supra) and therefore, they shall be deemed to have acquiesced in the appointment of respondent No.2 as Chief Justice of Pakistan. It is also contended that two of the Judges who were senior to respondent No.2, were sworn in on a number of occasions as Acting Chief Justice of Pakistan in the absence of respondent N0.2 abroad, and therefore, by implication they accepted the appointment of respondent No.2 as the Chief Justice of Pakistan and this question cannot be agitated now. Lastly, it is contended by Mr.Abdul Hafeez Pirzada that the relief in the nature of quo warranto being discretionary with the Court, should be refused in the present case as the affected party being present has failed to move the Court and the appointment of respondent No.2 having remained operative for over 3 years, should not be interfered with now when only a period of about 3 months remains in the completion of his term as the Chief Justice of Pakistan. None of the contentions raised by Mr. Abdul Hafeez Pirzada has any merit.

103. No doubt, the provisions in the Constitution regarding appointment of Chief Justice of Pakistan did come up for consideration before this Court in AlJehad Trust case, supra but it is not correct to say that failure on the part of Bench to decide the question had the effect of foreclosing the issue. The reasons for not addressing the issue regarding appointment of Chief Justice of Pakistan in Al-Jehad Trust case by the bench were stated in paragraph 6 of short order which was subscribed by all the learned Members of the Bench including respondent No.2. Paragraph 6 of the short order has already been reproduced earlier in this judgment. In addition to what was stated in paragraph 6 of the short order in Al-Jehad Trust case, respondent No.2 in his detailed judgment also recorded the following reasons for not taking up the issue regarding appointment of Chief Justice of Pakistan in the AI-Jehad Trust case (supra):-

"78. Now there is no dispute about the fact that appointment of a Judge as contemplated in the Constitution is an executive action for the reason that the final order is passed in the name of the President and in consequence notification is to be issued as is contemplated under the law and Rules of Business. So far Article 177 is concerned, it envisages that the Chief Justice of Pakistan shall be appointed by the President and each of the other Judges shall be appointed by the President after 'consultation' with the Chief Justice. A point arose whether this Article should be read alongwith Article 180, which provides for appointment of Acting Chief Justice of Pakistan providing therein that the most senior of other Judges shall be appointed by the President to act as the Chief Justice of Pakistan. We have declined to go into this question for the reasons, firstly, that in Constitutional Petition No.29 of 1995 appointment of permanent Chief Justice as such was not challenged, but at the time when the petition was filed, there was Acting Chief Justice of Pakistan and his appointment was challenged on the ground that since there was a permanent vacancy, he should have been appointed as a permanent Chief Justice instead of as Acting Chief Justice. During the pendency of the petition a development took place and permanent Chief Justice of Pakistan was appointed and for that reason the petitioner did not press the prayer to that extent. Secondly, proper assistance by the learned counsel on this point was not rendered. Thirdly, cases are pending in which the same subject-matter is involved."

104. Mr. Justice Ajmal Mian (as he then was) who wrote the leading opinion in Al-Jehad Trust case also adverted to the issue of appointment of Chief Justice of Pakistan arising in the case but did not decide the same for the following reasons"-

"53. In our short order dated 20-3-1996 we have refrained from interpreting Article 177 read with Article 180 of the Constitution as to the appointment of Chief Justice of Pakistan for the following reasons:-

'Firstly that in Constitutional Petition No.29 of 1994, which is directly filed in this Court, appointment of the Acting Chief Justice was challenged on the ground that when there was clear vacancy after retirement, instead of Acting Chief Justice, the incumbent should have been appointed on permanent basis being the most senior. During pendency of the petition, permanent Chief Justice of Pakistan was appointed and, therefore, the petitioner did not press the prayer to that extent vide Civil Miscellaneous Application No.541-K of 1996, dated 10th March, 1996. Secondly, proper assistance by the learned counsel on this point was also not rendered. Thirdly, the cases are pending in which the same subject-matter is involved. For such reasons, we do not consider it proper to go into the question of interpretation of these two provisions'. "

105. Manzoor Hussain Sial, J., who was also a Member of Bench which decided Al-Jehad Trust case in his concurring note gave the following reasons for not adverting to the issue of appointment of Chief Justice of Pakistan, which arose in the case:-

"Article 177 of the Constitution deals with the appointment of the Chief Justice of Pakistan, whereas Article 180 relates to the appointment of the Acting Chief Justice of Pakistan. The question as to whether the most senior Judge of the Supreme Court is entitled to be considered for appointment as Chief Justice of Pakistan against permanent vacancy is not being decided because cases involving the same subject-matter are already sub judice before the Courts, and the petitioner himself did not press the prayer to that extent vide Civil Miscellaneous Application No.541-F of 1996. Another reason for not interpreting these provisions is that proper assistance was not rendered by learned counsel for the parties in this regard. "

106. Justice Ajmal Mian (as he then was) once again stated the reasons for not deciding the issue regarding appointment of Chief Justice of Pakistan in Al -Jehad Trust case (supra) while deciding President's Reference No.2 (reported as Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84), as follows:-

"6. 1 may observe that in the Constitutional petition relating to the Judges' Case, the petitioner had prayed that the then senior most Judge, Saad Saood Jan, J., who was then appointed as the Acting Chief Justice, should be appointed as the permanent Chief Justice. It may be observed that while the aforementioned Constitution petition was pending, the present incumbent of the office of the Chief Justice was appointed. The question, as to whether the senior most Judge had legitimate expectancy to be appointed as the Chief Justice in the absence of any concrete thing against him, was argued before the Bench which was hearing the Judges' Case, to which I was a Member and so also the learned Chief Justice. I sought the assistance on the above question of the learned counsel who appeared in the aforesaid Constitutional petition. My personal view was that since I was not directly involved, the question of appointment of the Chief Justice of Pakistan should also be decided as we were deciding the question of appointment of the Chief Justice of the High Courts, Judges of the Supreme Court and the High Courts and other matters relating to the judicial appointments in exercise of jurisdiction under Article 184(3) of the Constitution. However, the learned Chief Justice was of the contrary view. The above question was left open for the reasons mentioned in para.53 of my opinion in-the Judges' Case. "

107. After reading the above-quoted observations, we are in no doubt that controversy regarding appointment of respondent No.2 as the Chief Justice of Pakistan, was left open for decision in some other appropriate proceedings by the Bench which decided Al-Jehad Trust case.

108. The issue regarding appointment of respondent No.2 as the Chief Justice of Pakistan even otherwise could not be decided effectively by the Bench in Al-Jehad Trust case (supra) as respondent No.2 himself presided over the said Bench and on the maxim "Nemo debt esse judex in propria sua causa (no man can be Judge in his own cause) he could not render a decision on the issue. The decision of the Bench in Al-Jehad Trust case on issue of the appointment of respondent No.2 as the Chief Justice of Pakistan would also have come in conflict with the following provision in the Code of Conduct signed by all Judges of superior Court, on account of presence of respondent No.2 on the Bench:-

"A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends."

109. Therefore, from whatever angle we may examine the case, the decision in Al-Jehad Trust case could not have the effect of foreclosing the issue regarding appointment of respondent No.2 as the Chief Justice of Pakistan.

Mr Abdul Hafeez Pirzada also argued that. the three Judges, senior to respondent No.2 neither at the time of the appointment of respondent No. 2 as the Chief Justice of Pakistan raised any objection nor at any time thereafter they protested against his appointment as Chief Justice of Pakistan. It is contended that these three senior Judges continued to work under the Chief Justiceship of respondent No.2 until two of them retired in normal course while the third learned senior Judge sat on different Benches presided over .by respondent No.2, and delivered judgments including the judgment in Al-jehad Trust case, which amounted to acceptance by acquiescence on their part in the appointment of respondent No.2 as the Chief Justice of Pakistan. The fact that two of the three Hon'ble Judges who were senior to respondent No.2 on a number of occasions, were sworn-in as the Acting Chief Justice of Pakistan during the absence of respondent No.2 abroad is also pleaded by Mr. Abdul Hafeez Pirzada as a circumstance to show that the appointment of respondent No.2 as ithe Chief Justice of Pakistan, was accepted by them without reservations.

111. Respondent No. 2 was sworn in as Chief Justice of Pakistan on 5-6-1994. The three Judges senior to respondent No.2 in spite of invitation by the President of Pakistan did no attend the oath-taking ceremony of respondent No.2 to express their resentment over his appointment as Chief Justice of Pakistan. The then senior most Judge, Justice Saad Saood Jan, who had the legitimate expectancy to the office of Chief Justice of Pakistan and who in accordance with the convention should have been appointed as the Chief Justice of Pakistan, immediately on the swearing in of the respondent .No.2 as Chief Justice of Pakistan proceeded on leave for three months and until his retirement on 30-6-1996, spent most of his time at the Branch Registry of. this Court at Lahore. Justice Saad Saood Jan on the eve of his retirement as a Judge of this Court in his farewell address read at the Full Court Reference held in his honour on 30-6-1996 which was widely reported in the national press, expressed his sentiments as follows:-

"This Reference takes place in the wake of a judgment recently delivered by this Court. Amongst other matters, it recognises the principle of seniority and the consideration of legitimate expectancy in making appointment to the higher office in the superior Courts. It should put an end to the ambitions of those who attempt to overreach their seniors. The scramble that beizins when the highest office is about to fall vacant, -gives rise to other evils, leads to bad blood among the Judges and creates rifts in the Court. I have particular reasons to welcome at least this part of the judgment as I have been myself twice the victim of this rat race.

Reference to a retiring Judge in theory should be the occasion when he is shown the mirror so that he can see himself as others see him. But the members of the Bar have always been very generous to him. Mark Antony had said at the funeral oration of Julius Caesar that the evil that men do lives after them, the good is oftinterred with their bones. With the members of the Bar, it is just the opposite; they scrupulously conceal the demerits of the retiring Judge and exaggerate his good points. I have been particularly fortunate for I have always enjoyed their love and affection. This makes the parting all the more poignant. I shall always cherish the memories of the days I spent in their company, both on the Bench and elsewhere.

I am particularly grateful to my brethren at the Bench. I have received nothing but affection from them. In the hour of deer depression resulting from deprivation of what I was entitled to, their kind words were a source of great comfort to me. I thank them all from the deep recess of my heart." (The underlining is by us).

112. Justice Saad Saood Jan also gave a statement to the press immediately after his retirement which was reported by daily 'Jang' in its issue of 3-7-1996 as follows:-

The next Senior Judge, Justice Abdul Qadeer Chaudhry, retired as a Judge of this Court on 12-7-1994 within about one month and 6 days of the appointment of respondent No.2 as the Chief Justice of Pakistan. The last senior most Judge, Ajmal Mian, who should have been appointed as the Chief Justice of Pakistan on the date Justice Saad Saood Jan would have retired in accordance with the well established rule of seniority, though continued to serve on the Bench but he expressed his reservations about the appointment of Chief Justice of Pakistan in is judgment in the Judges' Case delivered on 24-3-1996 and in the President's Reference No.2 of 1996 (reported as Al-Jehad Trust v. Federation of Pakistan (supra,) decided on 4-12-1996, which we have already reproduced earlier in this judgment. From the abovestated facts, it is quite clear that Justice Abdul Qadeer Chaudhry had no expectancy to the office of Chief Justice of Pakistan as he was not only junior to Justice Saad Saood Jan in order of seniority but he retired long before the retirement of Justice Saad Saood Jan. Therefore, we may keep out of consideration for the present, his reactions to the appointment of respondent No.2 as Chief Justice of Pakistan. The senior most Judge. at that time, was Justice Saad Saood Jan, who had had the legitimate expectancy to the office of Chief Justice of Pakistan but he was illegally denied that right. There is nothing on record before us to show that he either expressly or by implication surrendered his right of expectancy to the office of Chief Justice of Pakistan in favour of respondent No.2 or that he accepted or acquiesced in the appointment of respondent No.2 as Chief Justice of Pakistan. On the contrary, from the abovequoted observations from his farewell address delivered at the Full Court Reference on the eve of his retirement and the press statement given by him immediately after his retirement as a Judge of this Court, as reported in daily 'fang', it is abundantly clear that Justice Saad Saood Jan had strong reservations against his supersession and appointment of respondent No.2 as Chief Justice of Pakistan. Similarly, from the observations of Ajmal Mian, J. (as he then was) in his judgment in Judges' Case and President's Reference No.2 of 1996 reproduced earlier, it is quite clear that he too neither accepted the appointment of respondent No.2 as Chief Justice of Pakistan as valid nor he surrendered his right of legitimate expectancy to the office of Chief Justice of Pakistan in favour of respondent No.2. It must be borne in mind that Judges of superior Courts by their tradition, maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue. They are also not expected to litigate in Courts like ordinary litigant in case of denial of a right connected with their offices. Article VI of the Code of Conduct signed by every Judge of the superior Courts also enjoins upon them to avoid as far as possible any litigation on their behalf or on behalf of others. Therefore, in keeping with the high tradition of their office and their exalted image in the public eye, the ? Judges of superior Courts can only express their disapproval, resentment or ? reservations an issue either in their judgment or order if the opportunity so arises or they express their sentiments on an occasion like Full Court References, when they get an opportunity to give vent to their feelings without being involved in public controversy or litigation of any kind. We are, therefore, of the view that mere fact that the two Judges of this Court, who were senior to respondent No.2, continued to serve on the Bench as Judges of this Court with respondent No.2 after the appointment of respondent No.2 as Chief Justice of Pakistan or that when occasion arose they were sworn-in as the Acting Chief Justice during the absence of respondent No.2 abroad, could neither create any estoppel against them by conduct nor these facts amounted to acquiescence on their part in the unconstitutional appointment of respondent No.2 as Chief Justice of Pakistan so as to deprive them of their right of legitimate expectancy to the office of Chief Justice of Pakistan. There, of course can be no estoppel against the law muchless against the Constitution as held by the majority decision in the case of Pir Sabir Shah v. Federation of Pakistan (PLD 1995 SC 66):-

"It may be mentioned here that during the hearing contention was raised that since counsel for respondents Shad Muhammad Khan and Akhtar Hussain Shah contested the reference before the Election Commission without objection to the effect that the Election Commission had no jurisdiction hence it would not be open to them now to turn around and say that the forums of Election Commission for determination of the reference and appeal before the Supreme Court were not competent and that this provision was in conflict with Article 63 of the Constitution, which provides only one forum of the Chief Election Commissioner. This contention is not tenable for the reasons that question of jurisdiction is very important and fundamental in nature and if a forum has no jurisdiction, the same cannot be conferred upon it by consent of the parties. Question of jurisdiction is to be considered by the Court even though not raised by the parties. In support of the proposition reference can be made to the case of Raleigh Investment Company Limited v. The Governor-General-in-Council (PLD 1947 Privy Council 19). There is no dispute about the fact that the doctrine of extoppel cannot be applied to defeat the provisions of statute or enactment affecting jurisdiction of the Court. Reference can also be made to the case of Muhammad Sulman v. Javed Iqbal (PLD 1982 SC (AJ&K) 64). "

113. The controversy regarding appointment of respondent No.2 as the Chief Justice of Pakistan throughout remained a live issue and a subject of debate in public and in the legal circles besides being raised in proceedings before this Court, from time to time, is borne out from the following facts. Soon after the appointment of respondent No.2 as the Chief Justice of Pakistan the issue regarding constitutionality of his appointment was raised before this Court in a Civil Petition for Leave to Appeal decided on 14-7-1994, before a Bench of this Court presided over by respondent No.2, reported as Imtiaz Ahmed v. Government of Pakistan (1994 SCMR 2142). The objection regarding validity of the appointment of respondent No.2 was summarily disposed of by the Court as follows:-

"22. Before we part with this case, it would be pertinent to mention that on the first date of hearing, on attempt was made by the counsel for the petitioner to file in the Court objections in writing questioning the composition of this Court and appointment of the Chief Justice, which were, returned as not properly filed on two grounds. Firstly that they were not filed in the office as is normally done and secondly that they were irrelevant and frivolous having no nexus with subject-matter of petition under hearing. No further effort was made to reagitate or press those objections during the hearing; nor were the objections. replied in accordance with the rules."

Immediately after the above decision, a Civil Review Petition, bearing No.79 of 1994, was filed in above case but it never proceeded and remained pending till todate.

114. Alongwith the written statement of Federal Government filed in the above cases, a copy of the petition under Article 209 of the. Constitution filed by Wahab-ul-Khairi, Advocate, against respondent No.2 and several other Judges of superior Courts, on 14-2-1995, which was published in daily ' Nada-e-Haq' of 13th March, 1995 has been produced, wherein the appointment of respondent No.2 as Chief Justice of Pakistan was challenged as follows:-

115. Wahab-ul-Khairi, Advocate, was later proceeded against under Contempt of Court Act by this Court in Criminal Original Petition No.17 of 1995 for filing the above petition and publishing the same in the daily ' Nada-eHaq' date 13-3-1995, which is still pending.

116. Writ Petition No. 1172 of 1995 was filed in the Peshawar High Court to challenge the appointment of respondent No.2 as Chief Justice of Pakistan but it was later withdrawn on 2-1-1996.

117. In Constitutional Petition No. 140-Q of 1996, filed at Quetta, the respondent raised collateral attack on the validity of the appointment of respondent No.2. A learned Bench of two Judges of this Court heard the objection and through a detailed order dated 18-11-1997, forwarded the case to respondent No.2 for constituting Full Court urgently to decide the issue, as follows:--

"According to learned counsel, therefore, the Hon'ble Chief Justice himself is of the view that even for appointment in the Supreme Court the rule of seniority is the correct method of appointment.

(d) According to learned counsel, a new dimension to this question which has not yet been decided judicially by the superior judiciary in Pakistan, has been given by the recent appointment of the five most Senior Judges in the Supreme Court and, if in the appointment of Judges in the Supreme Court, the rule of seniority is strictly followed, there is no reason why the same recognized principle of seniority is not followed in the case of appointment of the Chief Justice of the Supreme Court unless, there is something tangible against the senior most Judge which was taken up as a reason for not appointing the senior most Judge as the Chief Justice is a reason which is justiciable in the Court.

(3) ??????? In the circumstances, learned counsel has prayed that this question may be referred to the Hon'ble Chief Justice for decision by the Full Court minus the Chief Justice as; while deciding this question, it will be his appointment as the Chief Justice that will be in issue.

(4) ??????? Mr. Khushnood Ahmed, the learned Advocate Supreme Court for the petitioner, states that the question raised by Raja M. Afsar is a matter which is causing confusion and uncertainty in the country and requires urgent decision by the Full Court and to that extent he supports the request made by Raja M. Afsar.

(5) ??????? After considering the submissions made, we are of the view that this matter requires urgent attention and decision by the Full Court. In the circumstances, it is directed that his file may be sent to Islamabad for being placed before the Hon'ble Chief Justice for placing; the matter before the Full Court."

118. No action was taken by respondent No.2 in terms of the above order of the Bench and ultimately the objections were heard alongwith the above petitions by us and disposed of by the short order announced on 23-12-1997.

119. The Federal Government, alongwith its written statement has. also filed number of other documents and press reports to demonstrate the, public resentment and the criticism of representatives of Bar over the appointment of respondent No.2 as Chief Justice of Pakistan. One of _the documents filed by the Federal Government is an address read by Chairman, Law Reforms Committee, Pakistan Bar Council at All Pakistan Lawyers Convention held on 17-7-1994 at Hotel Avari, Lahore. In his above address, the Chairman, Law Reforms Committee, Pakistan Bar Council while commenting on the appointment of respondent No.2 as Chief Justice of Pakistan remarked : "Three senior most Judges of Supreme Court, Mr. Justice Saad Saood Jan, Mr.Justice Abdul Qadeer Chaudhry and Mr. Justice Ajmal Mian, with unblemished record have been bypassed dishonestly". The other document is a news item published by the daily 'Dawn', Karachi, on 26th August, 1994, regarding strike called by All Pakistan Lawyers Action Committee in support of its demand "to save judiciary to save Pakistan". According to the news item "the APLAC was formed to ensure the independence of judiciary and to protest against all political appointments to the superior judiciary such as that of the Chief Justice of Supreme Court superseding three Senior Judges, appointment of Acting Chief Justices of High Court of Sindh, Lahore and the Federal Shariat Court.

120. Muhammad Akram Sheikh, a Senior Advocate of this Court and a former President of Supreme Court Bar Association was proceeded against by this Court, under Contempt of Court Act (Criminal Original Petition No. 14 of 1995) for his comments on the judgment in Pir Sabir Shah v. Federal Government (supra) and then later commenting as follows, in the newspaper on 17-3-1995:-

121. Dr. Abdul Basit, another Senior Advocate of this Court was also proceeded against under the Contempt of Court Act for his editorial comments in the journal "Legal Opinion", Volumes II and III, in two different cases (Criminal Original Petition No. 16 of 1995 and Criminal Original Petition No. 18 of 1995) for criticising and adversely commenting on the appointment o: respondent No.2 as the Chief Justice of Pakistan.

122. A well-known columnist of 'Dawn' Ardeshir Cowasjee was issued notice in a Contempt of Court case (Criminal Original Petition No.5 of 1995) for commenting on the judgment of this Court in Pir Sabir Shah's case (supra) under the caption "The defection case". In .his said column Ardesher Cowasjee paid glowing tributes to Justice Saad Saood Jan for his principled stand on the appointments of the Judges of Supreme Court which led to his ouster as the Acting Chief Justice and appointment of respondent No.2 as Chief Justice of Pakistan. While referring to respondent No.2 in the said column the columnist remarked "Chief Justice Sajjad Ali Shah, a permanent Judge of the Supreme Court, elevated as Chief Justice superseding two of his brethren (earlier in India, highhanded Indira appointed as Chief Justice of her Supreme Court Justice Ray superseding three Judges who immediately resigned). Our Chief Justice is fully aware that he presides over the highest Bench of the land from which an appeal only lies with the Bench of the master Judge upstairs".

123. All the cases of contempt referred to above are still pending decision before this Court. We are, therefore, of the view that the controversy regarding appointment of respondent No.2 as the Chief Justice of Pakistan neither became a past and closed transaction after the judgment of this Court in the Judges' case, nor the continuance of the two senior Judges of this Court (Justice Saad Saood Jan and Justice Ajmal Mian); in their respective offices after the appointment of respondent No.2 as Chief Justice of Pakistan or the fact that they were sworn-in on a number of occasions as the Acting Chief Justice during the absence of respondent No.2 abroad created any estoppel or acquiescence against them to assert their right of legitimate expectancy to the office of C1tief Justice of Pakistan so as to refuse the relief claimed in the above cases.

124. The controversy regarding appointment of respondent No.2 as the Chief Justice of Pakistan is a Constitutional issue of great public importance which was left open by this Court while deciding the Judges' case. This controversy has now directly arisen before this Court in the above cases. This Court being the final authority under the Constitution, to interpret the Constitutional provisions, therefore, must decide this issue in its Constitutional jurisdiction to settle the controversy once for all and ,to end the public debate going on this issue eversince the appointment of respondent No.2 as the Chief Justice of Pakistan.

125. Mr.Abdul Hafeez Pirzada, the learned counsel for the petitioner next contended. that on account of restraint order passed by the Quetta Bench in Constitutional Petition No.248-Q of 1997, the constitution of the Supreme Court became defective and it could not function in the absence of its. Chief Justice. It is also contended by the learned counsel that in the circumstances no appointment of Acting Chief Justice could be made as the Chief Justice Sajjad Ali Shah was very much in the country and he did not suffer from any incapacity which could prevent him from performing the functions of his office. The learned counsel argued that the words "due to any other cause" used in Article 180(b) of the Constitution should be construed ejusdem generis with the words absence or causes. arising from illness or other physical or mental incapacity of Chief Justice. On these premises, the learned counsel argued that the appointment of Justice Ajmal Mian as the Acting Chief Justice of Pakistan on 2-12-1997 by the Government was totally invalid. The learned counsel for the petitioners and the Federal Government as well as the learned Attorney General on the other hand, were of the view that as the learned Chief Justice was restrained under the orders of the Court, the acting appointment of Chief Justice could be made in terms of Article 180(b) of the Constitution, In fact the learned counsel for the Federal Government argued that as soon as the Quetta Bench passed the injunctive order restraining Chief Justice Sajjad Ali Shah from performing the functions of Chief Justice, the Federal Government moved a summary for the appointment of Acting Chief Justice but the then President did not approve the summary causing stalemate in the appointment of Acting Chief Justice.

126. To decide the above controversy, it is necessary to examine the Constitutional provisions relating to the appointment of Acting Chief Justice of Pakistan in the Constitution. Article 180 of the Constitution which deals with the appointment of Acting Chief Justice reads as follows:-

"Article 180. At any time when--

(a) ??????? the office of Chief Justice of Pakistan is vacant; or

(b) ??????? the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the Supreme Court to act as Chief Justice of Pakistan.

127. The above Article envisages appointment of Acting Chief Justice of Pakistan in two situations. Clause (a) of Article 180 provides for appointment of the Acting Chief Justice when there is a vacancy in office of Chief Justice of I Pakistan, meaning thereby, the incumbent Chief Justice has either retired or died T or removed from the office. Clause (b) of the Article 180 ibid contemplates appointment of Acting Chief Justice of Pakistan, when the Chief Justice is either absent or is unable to perform the functions of his office due to any other cause. The contention of Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No.2, is that the expression "due to any other cause" used in clause (b) of Article 180 (ibid), should be construed ejustdem generis having reference to the absence or inability of Chief Justice arising from his illness or any other like cause. According to learned counsel the inability arising from any other cause such as a legal disability arising on account of an order of restraint by a Court is not covered by this clause and therefore, in such a case the appointment of Acting Chief Justice could not be made. According to Mr. Abdul Hafeez Pirzada, the words "due to any other cause" in Article 180(b) be given restricted interpretation so as to include only those reasons which preceded these words in clause (b) of Article 180, namely the absence of the Chief Justice or his inability arising from his illness or any other like cause. At this stage, we may refer to the provisions in the Constitution of 1962 which preceded the Constitution, relating to appointment of Acting Chief Justice of Supreme Court Pakistan. Article 53 of the Constitution of 1962 contained the following provision for appointment of Acting Chief Justice of Supreme Court:

Article 53. At any time when---

(a) ??????? the office of Chief Justice of the Supreme Court is vacant; or

(b) ??????? the Chief Justice of the Supreme Court is absent or is unable to perform the functions of his office due to illness or some other cause; such other Judge of the Supreme Court as the President may appoint shall act as Chief Justice."

Clause (b) of the Article 53 (ibid), provided for acting appointment of Chief Justice of Supreme Court when the office of Chief Justice is vacant or he is absent or is unable to perform the functions of his office due to illness or some other cause. The Framers of the Constitution were aware of the above provision in the Constitution of 1962 when they introduced Article 180 of the Constitution. They deliberately omitted the words "due to illness or some other cause" and in its place used the expression "due to any other cause" in Article 180(b) of the Constitution which is an expression of a very wide import. The Constitution of a country is a basic organic document which is of a permanent character and is not subject to frequent changes. Such a basic document is necessarily a reflection of the aspiration of its people. The 1 Constitution. therefore, is not an imprisonment of the past but it takes care of the present and is also alive to the future. The cardinal rule of interpretation of a basic document like Constitution is, that it should be liberally construed and unless the context clearly implies a restricted construction the words and expression used in the Constitution are to be given widest connotation. We have y not been able to discover anything in the language of Article 180(b) of the 1 Constitution which could justify a restricted or narrower interpretation of the word "due to any other cause". We are, therefore, of the view the expression "due to any other cause" used in Article 180(b) is all embracing and given its ) natural and grammatical meanings would include in it all conceivable causes ) which would create inability on the part of Chief Justice of Pakistan to perform functions of his office. We, accordingly, hold that as a result of restraint order passed by the Quetta Bench in Constitutional Petition No.248-Q of 1997 on 26-11-1997, the Hon'ble Chief Justice was unable to perform the functions of his office, and therefore, the appointment of Acting Chief Justice in terms of clause (b) of Article 180 of the Constitution was necessary. No exception, therefore, could be taken to the appointment of Mr. Justice Ajmal Mian as the Acting Chief Justice of Pakistan in these circumstances.

128. The second limb of the argument of Mr. Abdul Hafeez Pirzada is that as the Chief Justice had ceased to perform his functions as a result of the order of Quetta Bench dated 26-11-1997, there was no Chief Justice of Pakistan and therefore, the constitution of Supreme Court had become defective and it could not function in the absence of Chief Justice of Pakistan. This Court considered a similar argument in the case of Mr. Zulfikar Ali Bhutto v. State (PLD 1978 SC 40) and repelled it as follows:-

"The argument of the learned counsel for the appellant proceeds on the assumption that Article 192 of the Constitution is to be construed as meaning that a vacancy in the office of the Chief Justice of the High Court would automatically render invalid its constitution and continuance. This does not appear to be correct.

In Lal Singh v. Ghansham Singh ILR 9 All. 625, it was held that the failure of the Government to fill up a vacancy among the Judges under the powers conferred by section 7 of the High Court's Act did not render illegal the functioning of the High Court even though by section 2 of the Letters Patent, it was provided that the High Court shall consist of a Chief Justice and five Judges. In the various judgments delivered by the learned Judges of the Full Bench a distinction appears to have been drawn between the constitution of the High Court as such, and the fact whether at any particular time all the vacancies had been filled or not. The existence of a vacancy was held not to affect the constitution of the High Court. It is true that this case concerned a vacancy among the five Judges of the Court and not that of the Chief Justice, but on principle there would not appear to be any difference between the two situations.

However, the question of the effect of the office of the Chief Justice remaining vacant was directly considered in Emperor v. Sohrai Koeri AIR 1938 Pat. 550. The learned Chief Justice of the High court had died in England, and an objection was taken that there being no Chief Justice, the High Court was not properly constituted and the Bench hearing that particular case ceased to have jurisdiction to pronounce judgment, which had been reserved on the conclusion of arguments at an earlier date. The objection was based. on the fact that clause (2) of the letters patent, by which the High Court was created, provided that it shall consist of a Chief Justice and six other Judges. The learned Judges overruled the objection on the ground that clause (2) of section 222 of the Government of India Act, 1935, clearly contemplated the appointment of an Acting Chief Justice if the office of the Chief Justice of a High Court became vacant, or if any such Chief Justice was by reason of absence or for any reason, unable to perform the duties of his office. The learned Judges went on to say that 'Thus, the contingency of the office of Chief Justice remaining vacant for some time is expressly recognised and provided for. In the case of 'a vacancy caused by death, some time must necessarily elapse before a new appointment is made. It will be preposterous to hold that during that interval there is no properly constituted High Court. The vacancy in any office implies that the office exists. Vacancy must be distinguished from abolition of the office. When a Chief Justice dies the office does not die with him but still continues. It only remains vacant until it is filled ??? up So long as the office is not abolished the Constitution remains unbroken and unchanged'.

A similar view was taken in Sampatlat v. Baliprasad Shah AIR 1950 Assam 6 in which an objection to the constitution of the Assam High Court on the ground that the Chief Justice alone had been appointed before the prescribed day was overruled, and it was said that delay in the appointment of the other Judges did not affect the constitution of the High Court and the Chief Justice was not debarred from performing the duties of his office or from discharging his functions as a Single Judge till the appointment of other Judges. The distinction made in the two earlier cases mentioned above between vacancy in the office of the Chief Justice and its total abolition was reiterated.

We have no hesitation in adopting the view taken in these cases from the Indian jurisdiction. There is indeed distinction between a vacancy in any office, and its abolition. The existence of a vacancy implies that the office exists. The true requirement of Article 192 of the Constitution is that in order to bring a High Court into existence there should be created the offices of a Chief Justice and the prescribed number of Judges. If these offices have been created, then the High Court has properly come into existence, and would be able to start functioning as soon as appointments to these offices, or to some of them have been made. Any temporary vacancy in any of these offices would not affect the constitution and jurisdiction of the High Court. This view is clearly borne out by the fact that Article 196 of the Constitution itself contemplates that the office of the Chief Justice of a High Court may be vacant at any given time or the Chief Justice may be absent or otherwise unable to perform the functions of his office due to any other cause. In such a contingency the Constitution contemplates the appointment of an Acting Chief Justice, and it is obvious that there may be some time lag between the occurrence of a vacancy and the appointment of an Acting Chief Justice. A similar provision is made, by Article 197 of the Constitution, regarding the appointment of Additional Judges of the High Court when the office of a Judge is vacant, or he is unable to perform the functions of his office, or for any reason it is necessary to increase the number of Judges of a High Court. If Article 192 of the Constitution were to be construed in the manner canvassed by Mr. Yahya Bakhtiar, then the likelihood of frequent interruptions and discontinuity in the work of the High Court cannot be ruled out, as vacancies in the office of the Chief Justice or the offices of the prescribed number of Judges may occur owing to human factors, and the inevitable time lag which must intervene between the occurrence of a sudden vacancy and its filling up, whether on a temporary or permanent basis by the President of Pakistan. The provisions of the Constitution cannot be interpreted in a manner calculated to bring to a halt the functioning of judicial institutions on the, happening of contingencies which are inherent in human affairs. We are, therefore, of the view that the constitution and continuity of the High Court is not affected by a temporary vacancy in the office of the Chief Justice or of any of the Judges from among the prescribed strength of the High Court; it would be affected only if, the office of the Chief Justice were to be abolished, and in that case alone could it be said that the High Court has ceased to be properly constituted in terms of Article 192 of the Constitution.

It is, however, not necessary to pursue this point any further, for the reason that we are in agreement with the view expressed by the High Court in the order under appeal, that the holding of the office of Chief Justice and the ability to perform, its functions are two different concepts, as made clear by the provisions of Article 196 of the Constitution, referred to above. Clause (b) of this Article leaves no doubt that the Chief Justice does not vacate his office simply because he is absent or is unable to perform the functions of his office due to any other cause. In other words, he continues to hold the office, even though he may not be able to perform its functions.

We consider that the High Court has also rightly observed, in another part of its order, that a Judge of a High Court, which term also includes the Chief Justice, does not cease to hold office unless he retires on attaining the age of superannuation as prescribed in Article 195 of the Constitution or he resigns from his office under Article 206; or is removed from his office under Article 209 of the Constitution; or dies Another situation in which he may be deemed to have vacated his office is, as held in Abrar Hasan v. Government of Pakistan PLD 1976 SC 315, where he accepts another substantive and permanent office, although without formally tendering his resignation from his judgeship. Apart from these situations, a Judge does not vacate his office simply by temporarily ceasing to performing its functions, or by temporarily taking up another assignment or office in terms of the permission granted by Article 207 of the Constitution. If follows, therefore, that by his temporary appointment as Acting Governor of the Punjab, Mr. Justice Aslam Riaz Hussain has not vacated the office of the Chief Justice of the High Court. According to the argument that the constitution of the High Court is rendered invalid owing to a vacancy in the office of the Chief Justice cannot be sustained on this ground as well. "

129. In view of the above stated legal position we hold that Mr. Justice Sajjad Ali Shah on account of restraint order passed by the Quetta Bench on 26-11-1997 was only unable to perform his functions as the Chief Justice of Pakistan but he neither vacated the said office nor he ceased to hold the office of Chief Justice of Pakistan on account of the order of Quetta Bench dated 26-11-1997. In spite of the order of Quetta Bench, Mr.Justice Sajjad Ali Shah continued to hold the office of Chief Justice of Pakistan though he was unable to perform the functions of his office. Therefore, on account of restraint order passed by the Quetta Bench on 26-11-1997 which prevented Mr. Justice Sajjad Ali Shah to perform the functions of the office of Chief Justice of Pakistan, the constitution of this Court was not rendered defective. It is an admitted position that as soon as the restraint order was passed against Mr. Justice Sajjad Ali Shah, by the Quetta Bench, the Federal Government moved the necessary summary for appointment of Acting Chief Justice of Pakistan but on account of the reluctance on the part of then President of Pakistan, the appointment was delayed until 2-12-1997. However, this delay in the appointment of Acting Chief Justice of Pakistan did not affect the constitution or working of this Court as during this interregnum the senior most Judge could discharge the functions of Chief Justice of Pakistan as explained earlier by us in this judgment. We, therefore, find no merit in the contention of Mr. Abdul Hafeez Pirzada that on account of restraint order passed against Mr. Justice Sajjad Ali Shah by the Quetta Bench on 26-11-1997 the Constitution of this Court became defective and therefore, it could not function any more in the absence of Chief Justice of A Pakistan. We also repel the contention of Mr. Abdul Hafeez Pirzada that the A appointment of Mr. Justice Ajmal Mian as the Acting Chief Justice of Pakistan A' in the circumstances was illegal or invalid.

130. The next contention of Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No.2 is, that if the Court holds that the senior most Judge of the Supreme Court is to be appointed as the Chief Justice of Pakistan under Article 177 of the Constitution, then this decision of the Court should apply to the future appointments to the post of Chief Justice of Pakistan and it should not be made applicable retrospectively so as to affect the appointment of respondent No.2 who was appointed as Chief Justice of Pakistan much before this decision. The learned counsel argued that the change brought about in the existing state of law through interpretation, by the Court is always applicable prospectively and not retrospectively. In support of his contention Mr. Abdul Hafeez Pirzada relied on the following passages from the book titled "Statutory Interpretation" by F.A.R. Bennion MA (Oxon) Barrister (Second Edition):-

"The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in- force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex post facto law is enshrined in the United States Constitution and in the Constitutions of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said, retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.

Retrospectivity is artificial, deeming a thing to be what it was not. Artificiality and make-believe are generally repugnant to law as the servant of human welfare. So it follows that the Courts apply the general presumption that an enactment is not intended to have retrospective effect. As always, the power of Parliament to produce such an effect where it wishes to do so is nevertheless undoubted. The general presumption, which therefore, applies only unless the contrary intention appears, is stated in Maxwell on the Interpretation of Statutes in the following emphatic terms: 'It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.

Maxwell's statement has received frequent judicial approval. It is however too dogmatically framed, and describes as a rule what (for reasons stated in Code, section 180) is really no more than a presumption which, in the instant case, may be out weighed by other factors. Where, on a weighing of the factors, it seems that some retrospective effect was intended, the general presumption against retrospectivity indicates that this should be kept to as narrow a compass as will accord with the legislative intention.

Apart from the general presumption itself, the question of retrospectivity is relevant to the application of various other guides to legislative intention. We have just mentioned one of them, namely the presumption against an artificial result. Now we go on to deal with others.

Principle against doubtful penalisation.--It is a general principle of legal policy that no one should suffer detriment by the application of a doubtful law. The general presumption against retrospectivity means that where one of the opposing constructions of an enactment would, without clear words justifying it, impose an ex post facto law, that construction is necessarily doubtful. If the construction also inflicts a detriment, that is a second factor against it. Lord Brightman said that a retrospective enactment inflicts a detriment for this purpose ' if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches .a new duty, or attaches a new disability, in regard to events already past. The growing propensity of the Courts to relate legal principle to the concept of fairness was shown by Staughton, L.J. when he said: 'In my judgment ? the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears.

131. The abovequoted passage though relates to retrospective operation of a legislation, the learned counsel contended that the same principle equally applied to the decision of the Court. Mr. Abdul Hafeez Pirzada, also referred to the following decisions in support of his above contention:-

(1) ??????? Muhammad Yousaf v. Chief Settlement Commissioner (PLD 1968 SC ??? 101);

(2) ??????? Nabi Ahmad v. Home Secretary, Government of West Pakistan (PLD 1969 SC 599);

(3) ??????? .T.O. v. Cement Agencies Ltd. (PLD 1969 SC 322)

132. In the first-noted case (Muhammad Yousaf v. Chief Settlement Commissioner), this Court considered the effect of its earlier decision in the case of Jalal Din v. The Chief Settlement Commissioner (PLD 1965 SC 26) wherein it was held that the order passed by a delegatee of Chief Settlement Commissioner was not subject to appeal and revision under the provisions of Displaced Persons (Compensation-and Rehabilitation ) Act, 1958, as follows:-

"This judgment came up for consideration before the Supreme Court in the case of Jalal Din v. The Chief Settlement Commissioner, etc. The learned Judges of the Full Bench had agreed that 'as a general rule, if delegation of powers were not subjected to any condition, the exercise of those powers by the delegatee cannot be interfered with by the competent authority' but had come to the conclusion that the provisions of Chapter VI were rendered applicable to orders of delegatees by the effect of the words 'subject to the provisions of the Act and the rules made thereunder'. These were the opening words of subsection (2) of section 31, by which the power of delegation is conferred upon the Chief Settlement Commissioner, and the Supreme Court came to the conclusion that these words of restraint were needed 'to give effect to the intention that the Chief Settlement Commissioner could not delegate his power in cases where it was not permitted by the Act or the rules'. Reference was made to section 29 of the Act, where in subsection (2) a specific power of delegation is given to the Chief Settlement Commissioner, but only in respect of Settlement Commissioners, Additional or Deputy Settlement Commissioners, that is not including Assistant Settlement Commissioners to whom also' under section 31 (2) such powers could be delegated. It was further held that the words 'subject to the provisions of this Act and the rules made thereunder' could not be made the basis of any further inference, i.e., they could not be interpreted to create a right of appeal or revision, which otherwise did not exist. It was observed that the ordinary rule was that the exercise of delegated power remains subject to the same control as it would be if exercised by the delegator, and that by the mere use of the words of the restraining clause which were clearly applicable in relation to the power conferred, viz., the power of delegation given to the Chief Settlement Commissioner, the intention could not be inferred that the exercise of a delegated power would be subject to appeal and revision like the ordinary orders of the delegatees. This judgment was delivered on the 2nd November, 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial Authorities were obliged by virtue of the Constitution to apply; the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement Authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act."

133. In the second case (Nabi Ahmed v. Home Secretary, Government of West Pakistan), 18 accused persons were challaned in a criminal case under sections 148, 302, 436 read with sections 109 and 149 of Pakistan Panel Code, on 25-4-1964 before the Court of a Magistrate for committing murder of 6 members of a family. On 3rd August, 1964 the Commissioner, Lahore Division, in exercise of his power under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 ordered that the case be tried before the Tribunal constituted under Pakistan Criminal Law (Amendment) Act on the consideration that it was a cruel and sensational murder and it would be a pity if the culprits escaped punishment. The order of Commissioner was, however, set aside in revision by the Home Secretary on the ground that section 109, P.P.C. was not included in the First Schedule to the West Pakistan Criminal Law (Amendment) Act 1963. Subsequently, the Superintendent of Police wrote to the District Magistrate, Gujranwala, that the cases of 3 accused charged with section 109 be separated and 15 remaining accused be referred to Tribunal for trial under the provisions of Pakistan Criminal Law (Amendment) Act, 1963, as no independent evidence was forthcoming and the case was not likely to stand the rigors of the trial in regular Court of law. The Commissioner passed a second order on 9-9-1966 for trial of 12 accused in the case after excluding 3 accused, who were charged under sections 109 and 3 others who had absconded in the meantime, before the Tribunal. The revision filed by the accused before Home Secretary, against the order of Commissioner, failed and so was the fate of the writ petition filed in the High Court. In the petition for leave to appeal before this Court against the order of the High Court, one of the contentions raised on behalf of the accused in that case was that sections 148 and 149 were added to the Schedule of the offence in the West Pakistan Criminal Law (Amendment ) Act, 1963 on 25-5-1966 and therefore, the offence committed under these sections before 25-5-1966 could not be tried under the Act as the inclusion of these two sections in the schedule did not operate retrospectively. Although ,leave was refused by this Court in that case on the ground that the new law was retrospective in operation but it was with reference to the above-quoted contention that this Court observed as follows:-

"The general proposition of law containing the presumption against retrospective applicability of law has been clearly stated by careful writers and Judges. Halsbury's Laws of England explains the meaning of the expression 'retrospective statute' in Vo1.36 at page 423 as follows: 'the Courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement,' and as pointed out In re : School Board Election for Parish of Pulborough, Bourke v. Nutt (1984) 1 QB 725): 'it is a well-recognised principle in the construction of statutes that they operate only on cases and facts which come into existence after the statutes were passed, unless retrospective effect is clearly intended.'

The reference to 'facts' along with 'cases' in the above quotation should be noted. Further, it should be noted that not commencement of cases. but only their existence is mentioned, because no technicalities are, involved in the idea. The same idea was expressed in the Colonial Sugar Refining Company Ltd. v. Irving 1905 AC 369 with reference to a pending case and even a retrospective change in the forum of appeal was held to be bad. The Judicial Committee observed that:

'In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new Tribunal.'

? The reason for the above view, to my mind, is that while abolition of an appeal takes away a right entirely, a charge in the forum of appeal equally creates distrust on the one hand and opens the door to uncertainty on the other . The Judicial Committee has further explained that 'if the matter in question' be 'more than a matter of procedure', that is to say, 'if it touches a right in existence at the passing of the Act', then 'in accordance with a long line of authorities extending from the time of Lord Coke to the present day', the Act would not operate so as to take away that right. The words 'touches a right in existence' and the words 'at the time of passing of the Act, should be noted. The relevant time is stated to be that of the passing of The Act, and protection is granted to a 'right in existence'. In the case of In re: Joseph Sache & Co. Ltd., (1875) 1 Ch.D 48 similar protection was recognised against alteration of existing rights of the parties in 'pending actions'. The references in these two leading judgments to the pendency of cases were appropriate to the facts which were considered, but the general proposition of law which emerges after eliminating that peculiarity, is that rights of the parties arising from facts which come into existence before the passing of a statute, should be presumed to be unaffected by it, unless it is expressly or by necessary implication made retrospective.

19. The full significance, and implications, of the protection cannot be fully appreciated, unless we discover its reason. This is not a statutory protection, yet the principle has by virtue of a presumption of fair-paly effectively checked er,.roachment on existing rights by the all powerful British Parliament, unless they were found to have been clearly and unambiguously so intended. What is the nature and strength of this presumption? I conceive that its origin is to be found in the conscientious abhorrence that all just men have for the injustice that is inherent in changing the legal implications of a situation to the disadvantage of those who would otherwise benefit by a right which exited at the time of the change. In Midland Railway Compam v. Peye 142 ER 419 Elre. C.J. said:

'Those whose duty it is to administer the law very properly guard against giving to an act of Parliament a retrospective operation, unless the intention of the Legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment.'

As a manifestation of more or less, a natural or instinctive sense of justice, or perhaps an instinctive repugnance to what one feels to be injustice, the Courts have held that laws do not 'impose new liabilities in respect of events taking place before their commencement'. In Bowling v. Camp (1) and in Henshall v. Porter (1923) 2 KB 193 a bar created by the Gaming Act, 1922 against the institution of suits, was held not to prohibit the continuance or even commencement of actions where liability was created before the Act came into force.

20. Since the above way of thinking is the consequence of a sense of aversion for injustice, it is immaterial- 'whether the law is changed before the hearing of the case at first instance or whilst an appeal is pending.'

In support of the above view, see Re: A. Debtor, Ex parte Debtor 1939 E & B 358. The same thought and the same sense of justice augments resistance if an erstwhile innocent act is converted into an offence or a lesser crime is converted into a .more serious one, or the rules of evidence are made unfavourable to the offender by ex post facto legislation, or an unobjectionable monetary device is converted by such legislation into tax evasion. Such penal legislation is forbidden by the convention for the Protection of Human Rights and Fundamental Freedoms which was signed by members of the Council of Europe in 1950, and later ratified by the United Kingdom. the fourth Fundamental Right of the late Constitution of 1962 partly preserved the same principle. The provision is as follows:

'4. Protection against retrospective punishment.--No law shall authorise the punishment of a person--

(a) for an act or omission that was not punishable by law at the time of the act or omission; or

(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.'

The above protection operated with reference to the time of the act or omission which may subsequently be made punishable and to the commission of an offence for which greater or even different kind of penalty may be imposed by ex post facto legislation. The time of the commencement of a proceeding to impose the punishment or penalty is not of the essence of the protection. There is no fundamental difference between retrospective and ex post facts law. The former expression is used in respect of civil matters and the latter in respect of criminal matters which by their nature are more serious. Corpus Juris Secundum explains under Constitutional Law in Vol 16-A, Article 435 as follows:

'While an ex post facto law has been broadly said to be one that has a retroactive effect, under other authority there is a difference between an ex post facto law and a mere retrospective law, and not all retroactive laws are ex post facto laws'."

134. The last case (I.T.O. v. Cement Agencies Ltd.), arose under the Income Tax Act. The Appellate Assistant Commissioner and the Income-tax Appellate Tribunal in that case had taken the view that since the Managing Agent and the Managed Company were both resident outside Pakistan, the Commission earned by the Managing Agent in regard to two cement factories in Pakistan was not taxable in Pakistan. The Court in the case of Octavius Steel & Company Ltd. v. The Commissioner of Income Tax Dacca PLD 1960 SC 371, however, took a different view. The Income Tax Authorities on the basis of the decision of this Court in Octavius Steel & Company's case (supra) attempted to reopen the case. It was in this background that this Court made the following observations:-

"The Appellate Assistant Commissioner and the Income Tax Appellate Tribunal took the view that since the Managing Agent and the Managed Company were both residents outside Pakistan, the commission earned by the Managing Agent in regard to the two Cement Factories of the Managed Company in Pakistan was not taxable in Pakistan. This Court in the case of Octavius Steel & Company Ltd. v. The Commissioner of Income Tax, Dacca, however, took a different vie,Iv. After the decision of this Court in the above case the second set of notices were issued to the respondent. The question that arises is whether this was permissible. In my view such a course is not sanctioned by law. I do not see how on the basis of the judgment of this Court in Octavius Steel & Company Ltd.'s case past and closed transactions could be reopened. The proceedings in respect of the disputed years were finally disposed of in favour of the respondent and until they are set aside in accordance with law, no fresh proceedings could be initiated in respect of these years."

135 It is a well-settled law that a new or an amending statute touching the, vested rights of the parties operates prospectively unless the language of the legislation expressly provides for its retrospective operation. However, the presumption against the retrospective operation of a statute is not applicable to statutes dealing with the procedure as no vested right can be claimed by any 1 party in respect of a procedure. The only exception to the retrospective oneration E of a procedure law is that if by giving it a retrospective operation, the vested right of a party is impaired then to that extent it operates prospectively. The above principles applicable to a new or an amending statute, however, cannot be applied strictly to the law declared by the Courts through interpretative process i The Courts while interpreting a law do not legislate or create any new law or I amend the existing law. By interpreting the law, the Courts only declare the true I meaning of the law which already existed. Therefore, to that extent the law declared by the Court is applicable from the date the law is enacted. However, as under the Constitution only the decision- of this Court on a question of law or in so far it enunciates a principle of law is binding on all Courts, and 1 Authorities, the possibility that a provision of law or Constitution before it came up for interpretation before this Court, was interpreted or understood differently could not be ruled out. Therefore, if as a result of interpretation of a law or a Constitutional provision by this Court, the existing interpretation or meaning of the law is changed, then it is more of a matter of public policy based on justice, equity and good conscious than a rule of law, that an innocent person who acting bona fidely on the prevailing interpretation or meaning of law created a liability or acquired a right, be protected against the change brought about in the existing state of law as a result of its interpretation by this Court. However, where a person or authority acts in defiance of a clear provision of law or Constitution or the interpretation by the Court does not have the effect of changing the prevailing understanding of the meaning of the provision of law or the Constitution, the question of, protecting any one against the effect of such interpretation by the Court on the principle that the effect of interpretation by given prospective operation, does not arise. For example, if a particular provision of law or the Constitution has not come up for interpretation before any Court and the functionaries responsible for giving effect to it have consistently interpreted the said provision and understood it in a particular scene and acted upon it accordingly over a length of time, but all of a sudden the functionaries decide to follow a new practice by changing the interpretation of that provision. However, when the matter is brought before the Court, the solitary deviation by the functionaries made on the basis of changed interpretation is struck down by the Court as illegal and unconstitutional and the previous interpretation and practice followed by the functionaries is upheld being in accordance with the law and Constitution. In that event, neither the functionaries nor the person deriving any benefit on the basis of the new practice founded on the changed interpretation of the provision of law or the Constitution could defend the illegality or unconstitutionality of the action on the principle that the interpretation given by the Courts be applied prospectively and not retrospectively, as in such a case the Court is stricking down the very first deviation of the functionaries on the ground that the deviation from the previous practice/interpretation is illegal and unconstitutional. The principle that the change in the state of law as a result of interpretation by this Court is to be given effect to from the date the Court interpreted the law is also not applicable in those cases which could be brought under challenge in accordance with the law before or after the interpretation of the provision by this Court. Even otherwise, as pointed out by us earlier, this Court while adopting an interpretation of the provision of the law or the Constitution which is at variance from the existing view, it is only declaring the correct law as an apex Court. By doing so, it neither legislates any new law nor amends the existing law. Therefore, while interpreting a provision of law or the Constitution, this Court can also provide the date from which the interpretation given by it is to come into effect, keeping in view the nature of the provision it is interpreting, the likelihood of possible prejudice which may be caused to an individual or a body of individual and the requirement of justice in the case.

136. The above view taken by us finds support from the following observation of the Indian Supreme Court in Golak Nath v. State of Punjab (AIR 1967 SC 1643):-

"45. In 1940, Hughes, C.J. In Chicot County Drainage District v. Baxter State Bank, (1940) 308 US 371 stated thus:

'The law prior to the determination of unconstitutionality is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased , by a new judicial declaration'."

In J. Graffin v. Peoples of the State of Illionis, (1956) 351 U.S. 12, 20 the Supreme Court of America reaffirmed the doctrine laid down in

Sunburst's case, (1932) 287 US 358=77 Law Ed 360 (supra), There, a statute required defendants to submit bills of exceptions as a prerequisite to an appeal from a conviction; the Act was held unconstitutional in that it provided no means whereby indigent defendants could secure a copy of the record for this purpose. Frankfurter, J., in that contest observed: , .

?....... ??? in arriving at a new principle, the judicial process is not important to define its scope and limits. Adjudication is not a mechanical exercise nor does it compel either/or' determination.

In J.A.Wolf v. Peoples of the State of Colorado, (1949) 338 US 25=93 Law Ed 1782 a majority of the Supreme Court held that in a prosecution in State Court for a State crime, the 14th Amendment did not forbid the admission of evidence obtained by an unreasonable search and seizure. But in Mapp v. Ohio, (1961) 367 US=6 Law Ed 2nd Fd. 1081 the Supreme Court reversed that decision and held that all evidence obtained by searches and seizure in violation of the 4th Amendment of the Federal Constitution was by virtue of the due process clause of the 14th Amendment guaranteeing the right to privacy free from unreasonable State intrusion inadmissible in a State Court. In Linkletter v. Walker, 381 US 618 the question arose whether the exclusion of the rule enunciated in (1961) 367 US 643=6 Law Ed 2 nd Fd 1081 (supra) did not apply to State Court's convictions which had become final before the date of that judgment. Mr. Justice Clarke, speaking for majority observed:

' We believe that the existence of the Wolf doctrine prior to Mapp is ' an operative' fact and may have consequences which cannot justly be ignored. The past cannot always be earsed by a new judicial declaration'??????..

'Mapp had as its prima purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights.

We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. On the other hand, the States relied on Wolf and followed its command. Final judgments of conviction were entered prior to Mapp. Again and again the Court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule. In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims.

Finally, there are interest in the administration of justice and the integrity of the judicial process to consider. To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witness available at the time of the original trial will not be available or it located their .memory will be dimmed. To thus, legitimate such an extraordinary procedural weapon that has no hearing on guilt would seriously disrupt the administration of justice '

The case has reaffirmed the doctrine of prospective overruling and has taken a pragmatic approach in refusing to give it retroactivity. In short, to America the doctrine of prospective overruling is now accepted to all branches of law, including Constitutional law. Bill the carving of the limits of retrospectivity of the new rule is left to Courts to be done, having regard to the requirements of justice. Even in England the Blackstonian Theory was criticised by Brentham and Austin. In Austin's Jurisprudence, 4th Edn., at page 65, the learned Author says;

'What hindered Blackstone was 'the childish fiction' employed by o?t Judges, that judiciary or common law is not made by them, but is a miraculous something made. by nobody, existing, I suppose. from eternity, and merely declared from time to time by the Judges'

(46) Though English Courts in the past accepted the Blackstonian Theory and though the House of Lords strictly adhered to the doctrine of 'precedent' in the earlier years, both the doctrines were practically given up by the "Practice Statement (Judicial Precedent)" issued by the House of Lords recorded in (1966) 1 WLR 1234. Lord Gardiner L.C., speaking for the House of Lords made the following observations:

'Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so'.

'In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and, also the especial need for certainty as to the criminal law.

The announcement is not intended to affect the use of precedent elsewhere than in this House.

It will be seen from this passage that the House of Lords hereafter in appropriate cases may depart from its previous decision when it appears right to do so and in so departing will bear in mind the danger of giving effect to the said decision retroactivity. We consider that what the House of Lords means by this statement is that in differing from the precedents it will do so only without interfering with the transactions that had taken place on the basis of earlier decisions. This decision, to a large extent, modifies the Blackstonian theory and accepts, though not expressly but by necessary implication the doctrine of 'prospective overruling'.

(47) Let us now consider some of the objections to this doctrine. The objections are: (1) the doctrine involved legislation by course; (2) it would not encourage parties to prefer appeals as they would not get any benefit therefrom, (3) the declaration for the future would only be obiter; (4) it is not a desirable change; and (5) the doctrine of retroactivity serves as a break on Courts which otherwise might of, tempted to be so fascial in overruling. But in our view, these objections are not insurmountable. If a Court can overrule its earlier decision there cannot be any dispute now that the Court can do so---there cannot be any valid reasons why it should not restrict its ruling to the future and not to the past. Even if the party filing an appeal may not be benefited by it, in similar appeals which he may file after the change in the law he will have the benefit The decision cannot be obiter for what the Court in effect does. is to declare the law but on the basis of another doctrine restricts its scope. Stability in law does not mean that injustice shall be perpetuated. An illuminating article on the subject is found in Pennsylvania Law Review.

(48) It is a modern doctrine suitable for a fast moving society. It does not do away with the doctrine of stare decisis, but confines it to past transactions. It is true that in one sense the Court only declares the law, either customary or statutory or personal law. While in restrict theory it may be said that the doctrine involves making of law, what the Court really does is to declare the law but refuses to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a Court finds law and that it does make law. It finds law but restricts its operation to the future. It enables the Court to bring about a smooth transition by correcting its errors without disturbing the impact of those errors on the past transactions. It is left to the discretion of the Court to prescribe the limits of the retrospectivity and thereby it enables it to would the relief to meet the ends of justice.'

(51) As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions: (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest Court of the country, i.e., the Supreme Court as it has the Constitutional jurisdiction to declare law binding on all the Courts in India; (3) the scope of the retroative operation of the law declared by the Supreme Court superseding its "earlier decisions": is left to its discretion to be moulded in accordance with the justice of the cause or matter before it. "

137. We may also mention here that the above rationale though not expressly stated so, was also followed by this Court in the case of Al-Jehad Trust v. Federation of Pakistan (Judges' Case) when the learned Bench after interpreting various provisions in the Constitution relating to the appointments of the Judges of the High Courts and Supreme Court directed a re-examination of the cases of ad hoc Judges of this Court and the permanent Judges of the three Provincial High Courts in the light of the judgment of this Court in Judges' Case and as a result of this exercise many Judges of the Provincial High Courts who had already taken oath as the Judges of those Courts and some ad hoc Judges of this Court, were relieved from their respective offices. In this connection, we may quote the following observations of respondent No.2 from his judgment in Judges' Case:-

"87. We have for the first time examined in detail the word 'consultation' used in the Articles of the Constitution in respect of the appointment of the Judges and have laid down the parameters for reasons which are stated above. We have also held that appointment of an Acting Chief Justice is stop-gap arrangement and is supposed to last for a short time and he is not authorised to deal with the policy matters including making 'recommendations' in the appointment of the Judges. In the direct petition and the appeal before us the appointments of the Judges were called in question and several Judges appointed by the present Government were made respondents. The meaning and scope of 'consultation' now laid down by us and the powers of Acting Chief Justices in connection therewith would affect only such appointments which have been made by the present Government and this exercise would not go beyond that. We are leaving it open that the appointments made with the 'recommendations' of; the Acting Chief Justices in the High Courts can be reviewed. and steps can be taken by the permanent Chief Justices to regularise them if this can be done on the basis of merit within thirty days from the date when the permanent Chief Justices are appointed in the High Courts and take oath. Regularisation shall take place as contemplated under Article 193 of the Constitution."

138. Examined in the light of the above stated principles, we find that the authorities responsible under the Constitution to make the appointment to the office of Chief Justice of Pakistan, interpreted Article 149 of the Constitution of 1956, Article 50 of the Constitution of 1962 and Article 177 of the Constitution, which are couched in identical language consistently from 1956 to 14-6-1994, in light of the well-established Constitutional convention that the senior most Judge of the Supreme Court is to be appointed as the Chief Justice of Pakistan in the absence of anything concrete and solid against him. The acceptance of the rule of seniority as the guiding principle on the basis of the above Constitutional convention, for appointment to the office of Chief Justice of Pakistan, by the concerned authorities, is fully demonstrated by the consensual formula submitted on behalf of the Federal Government in the case of Federation of Pakistan v. M.D. Tahir, Advocate (supra) and the categorical stand of Federal Government in the above cases. The acceptance of rule of seniority in the appointment to the office of Chief Justice of Pakistan as a Constitutional convention by the Constitutional Functionaries responsible for making the appointment, is further established by the fact, that then Federal Government as well as the present Government, as soon as it realized the unconstitutionality of the appointment of respondent No.2 as the Chief Justice of Pakistan made on 5-6-1994, moved the necessary summary for rectifying the Constitutional violation by denotifying the appointment of respondent No.2 as the Chief Justice of Pakistan but the efforts did not succeed on account of unyielding attitude of the then President of Pakistan, who was all out to defend the unconstitutional appointment of respondent No.2 as the Chief Justice of Pakistan. The above unconstitutional appointment of respondent No.2, was however, open to challenge before this Court as held by us earlier. In these circumstances, there is hardly any justification for the argument that the interpretation of Article 177 of the Constitution by us should be restricted to future appointments to the office of Chief Justice and should not affect the appointment of respondent No.2 on the principle or prospective operation of the judgments.

139. The last contention of Mr. Abdul Hafeez Pirzada in the above cases is, that if this Court declares the appointment of respondent No.2 as Chief Justice of Pakistan as invalid and unconstitutional, then the appointments of all the present Judges of this Court, except that of Justice Ajmal Mian, Justice Saiduzzaman Siddiqui and Justice Fazal Ilahi Khan and the appointments of large number of Judges of Provincial High Courts who are holding offices as the Judges and Chief Justices of those Courts, as a necessary corollary, will also be rendered invalid and unconstitutional as they were appointed by the President after consultation with respondent No.2 as the Chief Justice of Pakistan. The argument of the learned counsel does not appear to be correct. The learned counsel for respondent No.2 has himself relied on the following paragraph from the book entitled "A Treatise on the Constitutional Limitations" by Thomas M. Cooly LL.D. (Eighth Edition) on the principle of de facto exercise by the holder of a public office:-

"No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jute, or except when the person himself attempts to build up some; right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally. "

140. The above passage from Cooley's Book relied by Mr. Abdul Hafeez Pirzada was quoted with approval by this Court in the case of Farzand Ali v. Province of West Pakistan (PLD 1970 SC ' 98) and thereafter, the following further observations were made:-

"Upon these principles it has been strenuously argued by the learned Attorney-General that the Third, Fourth and the Sixth Constitutional Amendments are now unassailable, because, at any rate, the allegedly disqualified respondents had acted as de facto members, for, they had acted under the bona fide belief that they were entitled to so act and had at least a fair colour of title and they have also performed their duties with public acquiescence. They were not purely intruders. Therefore, their acts even apart from the provisions of sub-clause (d) of clause (1) of Article 110 were as good as those of de jure members of the National Assembly. I am of the opinion that there is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, I am also of the opinion that their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98(2)(b) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interest may have been affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of Public business and promote security of private rights.

In saying this, however, I would also like to take this opportunity of pointing out that I find it difficult to appreciate upon what principle the allegedly disqualified members were allowed to participate in the passing of the Third Amendment itself which was an amendment for removing their own disqualifications with regard to which the doubts had arisen. It would have been more dignified and more; in keeping with the principle that persons directly interested in a measure being proposed in the House should not participate in the voting thereof if they had refrained from doing so. This principle is embodied in the Rules of the National Assembly itself (vide sub-rule (3) of the Rule 152) and if authority is needed for this, one might refer the case of The Queen v. Ward (1873) 8 QB 210 where Blackburn, J. had indicated that if a person were to wilfully and contumaciously act in his own election the Court might allow an information to go.

I am not also unmindful of the fact that during the tendency of the proceedings in the High Court the appellants did apply to amend their petition for including therein a relief for a direction in the nature of quo warranto, but this application was rejected on the concession of the Attorney-General that if they were otherwise entitled to the relief, the Government would not take the technical stand that that particular relief had not been claimed. Assuming, therefore, that the relief by way of a quo warranto had been claimed I am of the. opinion that even so it would not have been of any help to the appellants on the question of the validity of the amendments themselves. If the quo warrnato had been allowed by the High Court, as pointed out by Waheeduddin Ahmed, J., it would have taken effect only from the date of the pronouncement of the High Court's judgment and not from any date anterior thereto and that would not have altered the decision regarding the validity of the impugned amendments. They would still have been protected by sub -clause (d) of clause (1) of Article 110 of the 1962 Constitution and the de facto doctrine, because, a quo warranto issues only where it is found that a pubic office is filled under a colour of title."

141. The principle of de facto exercise of power by a holder of judicial office was recognized by the Indian Supreme Court also in the case of Gokaraju Rangaraju v. State of A.P. (AIR 1981 SC 1473), as follows:-

"17. In our view, the de facto doctrine furnishes an answer to the submissions of Shri Phadke based on section 9 of Criminal Procedure Code and Article 21 of the Constitution. The Judges who rejected the appeal in one case and convicted the accused in the other case were not mere usurpers or intruders but were persons who discharged the functions and duties of Judges under colour of lawful authority. We are concerned with the office that the Judges purported to hold. We are not concerned with the particular incumbents of office. So long as the office was validly created, it matters not that the incumbent was not validly appointed. A person appointed as a Sessions Judge, Additional Sessions Judges or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session. They would continue to be valid as the judgments and orders of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid. On that account alone, it can never be said that the procedure prescribed by law has not been followed. It would be a different matter if the constitution of the Court itself is under challenge. We are not concerned with such a situation in the instant cases. We, therefore, find no force in any of the submissions of the learned counsel. "

142. From the above discussion, it follows that the recognition of the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of public business, to save the public from confusion and to protect private right I which a person may acquire as a result of exercise of power by the de facto I holder of the office. However, in the present cases only the acts done and orders E passed by respondent No.2 in his de facto capacity of Chief Justice of Pakistan before 26-11-1997 will be protected under the doctrine of de facto exercise of power as on that date, he was restrained by a Bench of this Court through a judicial order from exercising any judicial or administrative function as the Chief Justice of Pakistan.

143. As a result of the foregoing discussion, we hold that the appointment of

Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan on 5-6-1994 under F Article 177 of the Constitution was invalid and unconstitutional being in F violation of the well-established Constitutional convention that the senior most F Judge of the Supreme Court is to be appointed as the Chief Justice of Pakistan unless for some solid or strong reason, he is held disentitled to the said appointment. Mr. Justice Sajjad Ali Shah, consequently ceases to hold the office , of Chief Justice of Pakistan and reverts to the position of a Judge of this Court in accordance with his seniority. We, accordingly, direct the Federal Government to denotify the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan. Mr. Justice Sajjad Ali Shah was junior to Mr. Justice Saad Saood Jan, Mr. Justice Abdul Qadeer Chaudhry and Mr. Justice Ajmal Mian on the date he was appointed as the Chief Justice of Pakistan. On the date was announced the judgment in these cases, Mr. Justice Saad Saood Jan and Mr. Justice Abdul Qadeer Chaudhry already stood retired from service on reaching the age of superannuation. Therefore, no relief could be granted to them. The counsel for Federal Government conceded before us in the above cases that there is nothing against Mr. Justice Ajmal Mian, the senior most Judge of the Supreme Court now, which disentitled him to the appointment as Chief Justice of Pakistan. We, accordingly, direct the Federal Government to take immediate steps to notify the appointment of Mr. Justice Ajmal Mian as the Chief Justice of Pakistan. We further hold that all actions taken and orders passed by respondent No.2 in his capacity of Chief Justice of Pakistan, up to 25-11-1997 will be' deemed to have been validly taken and passed and will not be open to any challenge on the ground of defect in the appointment of respondent No.2 as Chief Justice of Pakistan. However, all actions taken or orders passed by respondent No.2 as Chief Justice of Pakistan on and after 26-11-1997 are declared of no legal effect.

Before parting with these cases we wish to record our appreciation for the valuable assistance rendered by the parties' counsel including the learned Attorney-General to the Court in resolving the intricate legal issues arising in these cases. The team of young lawyers who assisted Mr. Abdul Haffez Pirzada, the learned counsel for respondent No.2 in the above cases, also deserves a word of commendation from us for valuable research carried out by them on the legal issues arising in these cases. We also record our special appreciation for the valuable assistance rendered by Mr.S.S. Pirzada the learned amicus curiae in these cases, who in spite of his multifarious engagements, willingly accepted the appointment and in his usual lucid style argued the legal proposition arising in these cases. No orders at to costs.

(Sd.)

Saiduzzaman Siddiqui, J

(Sd.)

Fazal Ialhi Khan, J

(Sd.)

Irshad Hasan Khan, J entirely agree. However, I may add a note of my own

(Sd.)

Raja Afrasiab Khan, J

(Sd.)

Nasir Aslam Zahid, J

(Sd.)

Munawar Ahmad Mirza, J

(Sd.)

Khalil -ur-Rehman Khan, J

I agree but I may add a note of my own

(Sd.)

Sh. Ijaz Nisar, J

I agree

(Sd.)

Abdur Rehman Khan, J

(Sd.)

Sh. Riaz Ahmad, J.

IRSHAD HASAN KHAN, J.---I have had the privilege of going through the judgment proposed to be delivered by my learned and noble brother Saiduzzaman Siddiqui, J. who has skilfully discussed the erstwhile President's decision to supersede three senior most, highly respected Judges of the Supreme Court, namely Saad Saood Jan, J., Abdul Qadeer Chaudhry, J. since retired and Ajmal Mian, J., in the matter of the appointment of the Chief Justice of Pakistan. I respectfully agree in its entirety with the reasons advanced by my learned brother in support of the short order rendered by this Court on 23rd December, 1997. However, in view of the importance of the case, I would venture to add a brief note on the independence of judiciary which has not only been guaranteed by the Constitution of the Islamic Republic or Pakistan but has also been discussed by this Court in the historic judgments rendered in Government of Sindh through Chief Secretary to Government of Sindh, Karachi v. Sharaf Faridi (PLD 1994 SC 105) and Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi v. Federation of Pakistan (PLD 19961 Supreme Court 324). I would reiterate the following observations made by my learned brother Ajmal Mian, J.' (as he then was), vide paragraph 14 of his judgment in the Al-Jehad Trust's case (supra):

"The above reports relied upon also support Mr. Khairi's contention. I am inclined to hold that not only a practising Advocate but even a member of the public is entitled to see that the three limbs of the State, namely the Legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affect the public at large. The Fundamental Rights, which are enshrined in our Constitution and which also have the backing of our religion Islam, will become meaningless if there is no independent Judiciary available in the country. The Independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. If the appointments of Judges are not made in the manner provided in the Constitution or in terms thereof, the same will be detrimental to the independence of Judiciary which will lead to lack of confidence among the people. In my view, the appellants/petitioners have locus standi as the Constitutional questions raised in the appeal as well as in the aforesaid Constitutional petition are of great public importance as to the working of the Judiciary as an independent organ of the State. Even otherwise, the question of locus standi in the present case has lost significance for the reasons that we have admitted the above Constitution petition under Article 184(3) of the Constitution for examining the scope and import of the provisions relating to Judiciary. It may be observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11 of the Constitution even suo motu without having any formal petition. "

It will also be advantageous to reproduce paragraph 22 of the said report which reads thus:-

"From the above quoted verses from Holy Qur`an and other literature on the subject, inter alia the following is deducible:-

(i) ???????? That the Holy Qur'an repeatedly enjoins that one who believes in Allah, His Prophet Muhammad (p.b.u.h.), Qur'an and Sunnah, should stand out firmly for justice as witnesses to Allah, even as against himself or his parents, his kin, rich and poor;

(ii) ??????? that the hatred of others should not make you severe to wrong and

??????????? depart from justice;

(iii) ?????? that the Judges are not to be led by personal likes or dislikes, love or

??????????? hate;

(iv) ?????? that the Judges should maintain strict impartiality and even treatment in the Court inter se between the litigant parties notwithstanding that one of the parties might be very powerful and influential;

(v) ??????? to a Judge, all are equal in the eye of the law. As God dispenses Justice among His subjects, so a Judge should judge without any distinction whatsoever;

(vi) ?????? that a Judge must exhibit patience and perseverance in scanning the details, in testing the points presented as true and sifting facts from fiction and when truth presented itself to them, he must pass judgments without fear, favour or prejudice;

(vii) that the power to appoint inter alia Judges is a sacred trust, the same should be exercised in utmost good faith. Any extraneous consideration other than the merits is a great sin entailing severe punishment; (Underlining is mine).

(viii) that while selecting Judges the Authority concerned should be very careful. It should select people of excellent character, superior calibre and meritorious record. Abundance of litigations and complexity of cases should not make them lose their temper;

(ix) ?????? that a Judge should not be corrupt, covetous or greedy;

(x) ??????? that a Judge should be paid handsomely so that his needs are fully

??????????? satisfied and he is not required to beg or borrow or resort to corruption;

(xi) ?????? that a Judge must be a man of having deep insight, profound knowledge of Shariah, God-fearing, forth right, honest, sincere man of integrity;

(xii) that a Judge must be upright, sober, calm and cool. Nothing should ruffle his mind from the path of rectitude;

(xiii) that a Judges should be given such a prestige and position in the State that none of the Government functionaries can overlord them or bring them harm. "

2. Independence of the judiciary is a subject which the Judges have developed through the process of interpretation in the exercise of their judicial power. In 'Judiciary in India and Judicial Function' (1985 Edition) H.R. Khanna, J. (retired) describes independence of judiciary as the necessary corollary of the functions of the judiciary. "Such jurisdiction is exercised by Courts according to the scheme of our Constitution" and it follows as a necessary corollary that:-

"Since persons who are to decide such disputes be not susceptible to pressures of the citizens and of the State independence of the Judges has come to be accepted as an essential trait of the democratic society."

3. In CIJL Yearbook - Constitutional Guarantees for the Independence of the Judiciary, under the heading, "The Meaning of the Independence of the Judiciary", it is described in the following terms:-

"As far back as 1959, the International Commission of Jurists (ICJ) described the conditions which must govern the existence of an independent and impartial judiciary. Since then, it has continued to elaborate such norms at both the domestic and the international levels.

Impartial selection process.--The selection process is critical to ensure an Independent judiciary. If selection is entrusted to the executive (or Legislature) without adequate safeguards against abuse, the risk of appointments made on the basis of political or personal loyalty is high. The Basic Principles warn against 'improper motives' and mandate a selection process based on the principles of meritocracy and nondiscrimination. The same principles also apply to the promotion of Judges.

Conclusion.--In conclusion, it is appropriate to recall the words of Roger Lallemand, a Belgian Jurist, who correctly stated that "all thinking about the independence of the judiciary is hazardous. Independence is a value, an ideological principle, the basis of which must be understood. This should not make us forget that the independence of the judiciary remains the best guarantee of the exercise of the rights and freedoms required by human dignity. Far from being a luxury for a poor State, a legal structure which is quantitatively and qualitatively sufficient to carry out the services expected of it must be considered one of the necessary components of a society and a precondition for its progress. "

4. When in 1973, the Government of India decided to supersede three senior Judges of the Supreme Court in the matter of appointment of the Chief Justice of India, protests were lodged by the Advocates, Bar Association, Jurists and resolutions were passed condemning the appointment of the Chief Justice of India. Almost the same thing happened in Pakistan on the appointment of my learned brother Sajjad Ali Shah, J. as Chief Justice of Pakistan.

5. Mr. Justice (Retired) K. Subba Rao, former Chief Justice of India, in an article published in the "Statesman" in its Issue of May 14, 1973 under the caption, "The Supersession of Judges---The Price of Executive Interference" states:-

"The supersession of the three Senior Judges, in the matter of the appointment of the Chief Justice of the Supreme Court, on the day after the Supreme Court delivered its judgment in the Fundamental Rights case ignited a controversy throughout the country; almost all leading Advocates and most of the Bar Associations questioned its propriety. There is a conflict among the political parties. The Congress and the CPI supported the action and all the other parties opposed it. In Parliament the discussion proceeded on party line. As the action affects the independence of the judiciary, it is necessary that the intelligentia should carry out a national dialogue throughout the country. "

This statement is also reproduced in the book entitled, "A Judiciary Made To Measure", edited by N.A.Palkhivala.

6. A joint statement by M.C. Setalvad (former Attorney-General of India), M.C. Chagla (former Chief Justice of Bombay and former Cabinet Minister), J.C. Shah (former Chief Justice of India), K.T. Desai (former Chief Justice of the Gujarat High Court), V.M. Tarkunde (former Judge of the Bombay High Court), and N.A. Palkhivala, was also issued on April 26, 1973 under the caption, "The Saddest Day in the History of Our Free Institutions" in the following terms:-

"The Government of India's decision to supersede three senior most and highly respected Judges of the Supreme Court is not only unprecedented in the nearly quarter century of the Court's existence, but is a manifest attempt to undermine the Court's independence,

This improper action will inflict great and lasting damage on the judiciary. It is the saddest day in the history of our free institutions."

7. Mr. N.A. Palkhivala, a distinguished Indian Jurist, while addressing the general body of the Advocates also protested the supersession of the three senior most Judges of the Indian Supreme Court in the matter of the appointment of the Chief Justice of the Supreme Court of India in the following terms:-

"Clearly, as a matter of principle, we think it our duty to express publicly our protest at this unprecedented step which will undermine judicial independence and the dignity not only of the Supreme Court but also of the High Courts and other Courts in India where now the same pernicious practice may be followed by the State Governments."

J.C.Shah, former Chief Justice of India, also condemned the improper exercise of executive power by the Indian Government regarding supersession of three senior most Judges in the following terms:-

"Nine days ago, a remarkable piece of political skulduggery was perpetrated in this country. I have tried to think, and think many times over, whether there is any justification for what has been done. And with the best efforts on my part, discussing the matter with various people I have come to the conclusion that there is no reasonable ground which could have persuaded the Government to take the action they have taken. Before the Parliament, the apologists for the act which has been done have advanced many grounds.

First and foremost, they say, it is the privilege of the Government of the day to appoint the Chief Justice. Why only the Chief Justice, even the Judges. But you will agree with me, and most lawyers will say, that when power is conferred upon the executive or any other authority, it is intended to be exercised in good faith. If it is not done in good faith, then it is no real exercise of power. To say that there is power vested in the executive to appoint a Chief Justice means nothing whatever. Has the power been exercised in good faith? The circumstances which have transpired in quick succession do not lead to this conclusion. I wish I were wrong in thinking that the power was exercised not honestly, not bona fide, but for a collateral consideration. "

Refer 'A JUDICIARY MADE TO MEASURE' edited by N.A. Palkhivala.

8. Reference may also be made to the following observations made by my learned brother Sajjad Ali Shah, C.J. (as he then was), in the case of Al-Jehad Trust (supra) vide paragraph 70 of the report at page 399:

"We have to make reference to India time and again for the reason that before the partition it was one country, hence the problems which we are facing today in the present era, are more or less common ????????? "

My learned brother Sajjad Ali Shah, C J (as he then was), also referred in AlJehad Trust's case (supra) to the observations made by this Court in the case of Sharaf Faridi (supra), in which this Court on the subject of independence of judiciary held as under:-

"That every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter for any reason; and that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature."

9. The Commission on Separation of Powers and Judicial Independence (hereinafter referred to as the Commission), based in Geneva, in its report, published in 1990, under the caption: "An Independent Judiciary", inter alia, stated:-

"Throughout the history of our republic there have been recurrent occasions when charged political debate has focused on the judiciary. In the past, cycles of heated judicial criticism have passed without serious Constitutional crisis, in large part because a common purpose and mutual respect for the doctrine of separation of powers prevented any one branch from pressing its power to the outer limit.

A new cycle of intense political scrutiny and criticism of the judiciary is now upon us. While events over the past decade have contributed to the development of this new cycle, several more recent events have given rise to complaints that the political branches are threatening judicial independence. They include remarks by the President and the then Senate Majority Leader that a particular Judge should be impeached or should resign because of his decision to suppress evidence in a criminal drug prosecution; intensified congressional inquiry into the judiciary's governance, including the circulation of questionnaires to Judges regarding their work habits; and increasingly strident criticism of particular judicial decisions and activities, including allegations of 'judicial activism, 'threats of impeachment, and calls for judicial term limits by members of Congress. "

The conclusion of Executive Summary of the Report of the Commission reads thus:-

"Popular discontent with the Courts is not unprecedented. That, however, does not counsel complacency. While the current state of federal judicial independence remains essentially sound, a number of potentially serious problems exist that, if left unremedied, could degenerate into real threats to judicial independence. Those who value judicial independence must stand ready to protect it. It is incumbent upon lawyers to step up and take a leadership role in this regard. The time has come for Judges, lawyers, and the general public to work actively and aggressively to address the causes of popular dissatisfaction with the Courts, to restore public confidence in our judicial system, and thereby to preserve judicial independence as a value for all to cherish."

10. I do not want to repeat what has already been said as to the independence of judiciary by the Indian Jurists, by this Court in the aforesaid judgments/Report of the Commission and the judgment proposed to be delivered by my learned brother Saiduzzaman Siddiqui, J. but I may say in all humility that judicial independence is not an end in itself but is a means to promote impartial decision-making and to preserve, protect and defend the Constitution against encroachment from any other organ of the State. Without denying its faults, the Judges of the superior Courts administer impartial justice and remain willing, ready and able to exercise an independent check on the other organs of the State. Judges threatened with proceedings before the Supreme Judicial Council on account of unpopular decision in certain quarters, cannot be deterred from exercising their independent judgment and rendering decision according to the Constitution, law and their conscience in consonance with the oath of their offices. Clearly, the Judges of the Supreme Court of Pakistan are elevated from different High Courts of the Provinces because of their merit/seniority. It would, , therefore, be wrong and unjust to choose a junior Judge and put him at the top as Chief Justice of Pakistan in violation of the principle of seniority which has to be followed strictly in case of appointment of Chief Justice of Pakistan in accordance with the provisions of the Constitution and in 'consonance with the well-established Constitutional conventions.

(Sd.)

Irshad Hasan Khan, J

M.B.A./A-37/S ??????????? Order accordingly