P L D 1989 Supreme Court 689 (PLP)

"On behalf of the Federation of Pakistan, it is respectfully submitted that consistent with high traditions of our judiciary and the principle of natural justice i.e. that no person shall be a Judge in his own cause, it is submitted that the three Judges of this H'ble Court who had been appointed by the President without the advice of the Prime Minister and had been affected by the judgment of this H'ble Court, under review one way or the other, are requested that they may not sit on the Bench on 27th May, 1989 or on any date thereafter when the matter is heard as that will set a very bad precedent as Judges personally interested in the matter to do not sit as Judges to decide the case." The learned Chief Justice, dismissed this application in Chamber on 16‑5‑1989, with the following observation, inter alia that:‑‑ "I have consulted Judges who have signed the main judgment and they have stated that they will not feel embarrased to hear the case."

10. The Federal Government thereafter moved another application (CMP. No.196‑R/89) explaining as to why the earlier application was moved, and prayed as under:‑‑ l (i) "This application was filed keeping in view the high traditions and principles of natural justice universally accepted that no one should act as Judge in his own cause." (ii) "The rule that the Review Petition may be heard by the same Judges has exceptions. One of these is based upon the principle, that 'no one should be a Judge in his own cause'." (iii) "The clarification, if permissible, should be made by the remaining 9 Judges who were party to the judgment of 10‑3‑1989 and also by any other Judge that might be available."

11. This application was taken up at Karachi on 27‑5‑1989 but was adjourned to be heard at Rawalpindi on 27‑6‑1989. CMP No.196‑R/89 (in Civil Review Petition No.33‑R/89) was then heard by the Full Court on 27‑6‑1989 at Rawalpindi and the judgment was reserved. My learned brother Mr. Justice Shafiur Rehman has sent me a well‑considered draft of his order whereby he proposes to dismiss the said Misc. Petition. It is on this matter that I am recording my separate opinion.

12. In this Order my learned brother has cited and quoted from almost all the important judgments on the subject, from Pakistani. British and American Courts and has also made reference to the relevant portions of books written on the subject by well‑known jurists e.g. Dr. Smith, Marshall, Flicks and Davis, as well as Halsbury's Laws of England. He has also quoted important and relevant portions from the said judgments and books. I may profitably reproduce quotations from some of the judgments and books referred to and relied upon by my learned brother in his order, because it is primarily these which have led me to form the opinion and reach the conclusion which I propose to record.

13. While explaining the principle of natural justice in question namely !'no man shall be a Judge in his own cause", my learned brother started with quoting, in paragraph No.13 of his order, from a book by Flicks, called 'Natural Justice'. In the portion relied upon and quoted, Flicks says that:‑‑ " there is no more firmly established principle of law today than that no man is qualified to adjudicate upon a matter with regard to which he stands to akin or lose financially as a direct result of his decision.'' He says further that:‑‑ " In such cases the mere existence of pecuniary interest is sufficient to disqualify (the Judge) and an aggrieved party need not go to prove a real likelihood of bias. "

14. Similarly, in Dimes v. Grand Junction ('anal which is considered to be "a case of the highest possible authority", Lord St. Leonard, the Lord Chancellor of England in 1852, set aside a judgment recorded by a former Lord Chancellor (namely lord Cottenhem), in a case, because he (i.e. Lord Cottenhem) was shown to have had an interest, as a shareholder, in the company which was one of the parties in that case. The case was first heard by the Vice‑Chancellor, who granted the relief sought by the company. On appeal the Lord Chancellor (Lord Cottenhem) affirmed the order of Vice‑Chancellor. This was subsequently challenged and it was held, on appeal to the House of Lords, that the former Lord Chancellor (i.e. Lord Conttenhem who had by then ceased to hold office as such), was disqualified, on the ground of interest, from .sitting as a Judge in the case and that "his decree was therefore voidable and must consequently be reversed" .

15. The underlying principle in the above‑noted judgment was explained by Lord Campbell, C.J. in his judgment, in the following words:‑‑ "No one can suppose that Lord Cottenhem could be, in the remotest degree, influenced by the interest that he had in his concern but it is of the last importance that the maxim that no man is to be‑ a‑ Judge in his own cause should by held sacred. His Lordship went on to observe that: "(Ever) since 1 have had the honour to be Chief Justice of the Court of Queens Bench we have, again and again, set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took part in the decision. And it will have a most salutary influence on these tribunals when it is known that this High Court of lest resort, in a case in which the Lord Chancellor of England had an interest considered that his decree was not according to law and was set aside." His Lordship then went on to make the following pertinent observation‑‑ "This will be a lesson to all inferior tribunals to take care, not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence." Marshall in his book "Natural Justice" defines 'interest' as legal or pecuniary interest which is to be distinguished from 'favour'. In the former case, i.e. in the case of legal or pecuniary (i.e. financial interest), the smallest interest immediately disqualifies the Judge. In the latter case (i.e. in case of alleged bias, which does not involve pecuniary interest), disqualification is not automatic. On the contrary, in order to have effect such bias must be shown, at least, to be real.

16. In the case of Rex v. Meyer (1875‑1 Q.B. 173), Blackburn, J. referred to the decision in R.V. Rand (1866 L.R.‑1 Q.B.D.‑230), and observed that:‑ " ....The effect of our judgment in that case was that though pecuniary interest in the subject‑matter of the dispute, however small, disqualifies the Justices, yet the mere possibility of bias did not ipso facto, avoid Justices' decision, and we thought that though there was possibility of bias in that case, yet it was not real." My learned brother has also referred to the view of Francis Alexis on this aspect of the rule of natural justice under discussion and observed that:‑ "Pecuniary interest has been contrasted with non‑pecuniary interest in the following words in an Article by Francis Alexis under the heading 'Reasonableness in the Establishing of Bias' appearing in 1979 Volume of 'Public Law' at page

143. The author has contrasted it as hereunder at page 159" : "By contrast, once there is‑ a direct and certain pecuniary interest, not merely remote, speculative, or contingent, [See R. v. Rand (1866) L.R. 1 Q.B. 230, D.C.; R. v. Deal Justices (1881) ] an adjudicator is disqualified. He is disqualified by 'even the slightest pecuniary interest, 'as applied in R. v. Gaisfnrd [(1892)

1. Q.B. 381 at p.384 (Mathew, J.)], no matter 'however small,' be it less than a. farthing ' as the English Judge, Blackburn J., put up. [R. v. Rand (1866) L.R. 1 Q.B. 230 at p.232; R. v. Hammond (1863) 9 Law Reporter 423 at p.423, respectively. ]."

17. The same principle has also been summarized in Harvard Law Review Volume 86 (1972‑73) which has been reproduced in paragraph No. 20 of his Lordship's judgment and reads as follows: ‑ "When the Judge has financial interests which may be directly affected by the outcome of the litigation ‑ i.e. , an interest in a party or in the subject‑matter in controversy ‑ his impartiality clearly can be questioned by reasonable men, and therefore, disqualification should follow [See, e.g. Tumey v. Ohio, 273 U.S. 510 (1927)]. Supreme Court Justices beginning with Justice Livingston [Livingston & Gilchrist v. Maryland Ins. Col. II U. S. (7 Cranch) 506 (1813).] and Chie Justice Marshall Fair ax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603 (1813)] have consistent disqualified themselves under such circumstances. (See Frank, supra note 14 at p. 15) whether or not they consciously applied the strict appearance test. Indeed, even under the early English common law, which rarely required disqualification because, as Blackstone explained, 'the law will not suppose a possibility of bias or favour in a Judge who is already sworn to administer impartial justice,' (3 W. Blackstone, Commentaries ‑ 361) disqualification was required when the Judge had a direct pecuniary stake in the outcome. [e.g. Dr. Bonham's Case, 77 Eng. Rep. 646 (K.B. 1609); see Frank supra note 14, at 609‑12; Note, Disqualification of Judges for Prejudice or Bias ‑ Common Law Evolution, Current Status, and the Oregon Experience, 48 ORE. L. REV. 311, 315‑20 (1969). ]"

18. The principle that emerges from various judgments and treatises referred to by my learned brother, some of which have been quoted above is that where the pecuniary or financial interest of a Judge., H no matter however small, is likely to be affected as a direct result of the decision in any case, he is ipso facto disqualified from hearing it, and has no option left but to decline to sit on the Bench deciding it.

19. My learned brother has himself referred to the summing up of the principle emerging from various decisions in paragraph 17 of his order, as under:‑ "The principles emerging from various decisions have been summarized by the author at page 27 in the following words".‑ "This rule has been stated many times but the following dicta may be quoted":‑ "There is no doubt that any direct pecuniary interest however small in the subject of inquiry does disqualify e person from acting as a Judge in the matter". [Blackburn J. in R. v. Rand (1866 L.R. 1 Q.B. 230, 232]. "If he has any legal interest in the .decision of the question one way he is disqualified no matter now small the interest may be." [Lush, J. in Serjeant v. Dale (1877) 2 Q.B. D. 558, 567]. "....the least pecuniary interest in the subject‑matter of the litigation will disqualify any person from acting as a Judge." [Stephen, J. in R. v. Farrant (1887) 20 Q. D.B. 58, 60]. " ....a person who has a judicial duty to perform disqualifies himself from performing it if he has a pecuniary interest in the decision which he is about to give or a bias which renders him otherwise than an impartial Judge. If he has a pecuniary interest in the success of the accusation he must not be a Judge." [Bowen L.J. in Leeson v. General Council o Medical Education (1889)43 Ch. D. 366, 384]."

20. I am of the view that the reason for this extraordinary caution in matters where a Judge has a financial or pecuniary interest in the outcome of the decision of a case, is obvious. While Judges are' passing judgments in the cases that come before them, they are themselves being constantly judged by the public in general. The dignity and respect of the Courts is neither engendered nor protected by the Law of Contempt, but by the conduct and impartiality of the Judges themselves. It is because of their reputation of impartiality and neutrality that Sessions Judges in remotest districts like Mianwali and Dera Ismail Khan, who routinely sentence accused persons to death or acquit them, can go out alone for a walk in the evening, without the least fear or apprehension of being assaulted, attacked 1 or injured. It is not that while deciding cases, Judges are in any way partial or subject to any external influence, but they have always to be very mindful of the impression that the public in general may form about them. Judges have to be extremely careful about their image of impartiality, neutrality, and disinterestedness in the result of any case before them. One slip, giving the public a reason to believe that the Judge is motivated, and the lofty image of the Superior Courts in public mind, built so carefully during the last 150 years, would fall to the ground and shatter to pieces.

21. The importance of the opinion that people in general may form about Judges and the necessity to maintain the confidence in the public mind with respect to the neutrality and impartiality of the Judges, by ensuring that justice is not only done but is seen to be done, has been summarized by Justice Esher in Eckerslev v. Hersey Docks & Harbour Board (1894 2 Q.B. 667 at 671) in the following words:‑ " ....the doctrine which is applied to Judges, not merely of the Superior Courts, but to all Judges, that, not only must they be not case , but that, even though it be demonstrated that they would not be biased, they ought not to act as Judges in the matter where the circumstances are such that people ‑ not necessarily reasonable people, but many people would suspect them o being biased." "he same principle has been enunciated by Mr. Justice Lush, J. in Serjeant v. Dale as follows‑ "The law in laying down this strict rule, has regard, not so much perhaps to the motives which might be supposed to bias the Judge, as to the susceptibilities of the litigant parties. One important object at all events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.

22. The plea of the counsel for the Federal Government was that while hearing the appeals against the judgment of Lahore High Court in the petition filed by Haji Saif Ullah wherein he had challenged the validity and legality of actions taken and laws framed or appointments made by the President between the period 29‑5‑1988 to 2‑12‑1988. the learned members of the Bench hearing the appeal were concerned merely with considering the Constitutional question as to whether or not the Prime Minister was necessary for the formation of a "care‑taker Cabinet" under Article 48(5)(b) of the Constitution. At that stage the proposition was merely a legal one and no pecuniary interest of any kind was involved. But later, by the time Federal Government filed C.M.P. Nos.149‑R/89 and 196‑R/89, the position had materially altered. The Government brought out a Press Release on 10th of March, 1989, requesting inter alia that "all such appointees ma) suspend performance of their official duties till their appointments are regulated or reaffirmed by the President on the advice of the Prime Minister" and the Honourable Chief Justice of Pakistan actually risked the three learned Judges of this Court who were appointed (luring the relevant period to suspend work and they actually discontinued functioning, the position altered materially. According to the Federal Government, from that stage onward those learned Judges, whose career would be affected, one way or the other, by any decision taken with respect to the interpretation of the Full Court Judgment dated 5‑10‑1988, would obviously have a pecuniary interest in the outcome of the proceedings. At the time when the Federal Government filed C.R.P. No.33‑R/89, the fact that had agitated it was that a judgment in which very serious Constitutional questions had been decided on the 9th of March by 12 Judges, had within a few days been given an absolutely different meaning than what, according to it, the plain language used in the judgment clearly indicated. It, therefore, rushed, in a flush, to pray that the very same 12 Judges should assemble to interpret and explain it. It is only later that other consideration started weighing with it. Hence the subsequent application (C.M.P. No.149‑R/89) praying that only 9 learned Judges may interpret the judgment. As such the "inconsistency", that the Federal Government had first asked that all the 12 Judges who heard the appeal should hear the petition, but it is now asking for only 9 out of them to hear it, is more apparent than real.

23. As for the question whether the principle of necessity overrides the rule of Natural Justice, "that no one should be a Judge in his own cause", the law has been stated by my learned brother Mr. Justice Shafiur Rehman in the following summary in paragrpah No.28 of his order: ‑ (i) "It is a fundamental principle that in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a 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, p. 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 S C 585 at page 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 o 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, (i.e. in similar circumstances) 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 Volume, page 276].

24. I would like to re‑summarise this principle for the sake of brevity and clarity. As re‑summarised, the rule of exception due to necessity would read as follows:‑ No man can sit as a Judge in his own cause; (a) Unless there is‑‑ (i) statutory authority; or (ii) consensual agreement; or (iii) it becomes necessary to do so; (b) a Judge who would otherwise be disqualified, may act in a case of necessity, when no other Judge has jurisdiction to hear the case: (c) a Judge who is otherwise disqualified because of having interest in the case may justifiably be required to sit: (i) if there is no other competent tribunal or forum, to hear the case; or (ii) a quorum cannot be formed without him. (d) Similarly, if proceedings were brought against all the superior Judges they would be obliged to sit as Judges in their own cause, because in such a case no Judge will be left to form a Bench. It is obvious that none of the situations envisaged in the above summary of the principle of "Necessity" has arisen in the present case. The same is therefore not applicable to this case. 24‑A. As for the argument that this principle does not apply to the superior Courts, at the apex, I would respectfully refer to the following portion of the extract. reproduced from Harvard Law Review in paragraph No.15, above:‑ "Supreme Court Justices beginning with Justice Livingston I [Livingston & Gilchrist v. Maryland Ins. Col. II U.S. (7 Cranch) 506 (1813).] and Chief Justice Marshall [Fairfax's Devisee v. Hunter's Lessee, II U.S. (7 Cranch) 603 (1813)] have consistently disqualified themselves under such circumstances The following portion of the judgment of Lord Esher in Eckersley v. Hersey Docks & Harbour Board (1894) 2 Q.B. 667 at 671)) reproduced in para. No.21 above is also relevant in this connection and may be usefully reproduce again:‑ " .the doctrine which is applied to Judges, not merely of the Superior Courts but to all Judges, that, not only must they be not bed, but that, even though it be demonstrated that they would not be biased, they ought not to act as Judges in a matter where the circumstances are such that people‑‑ not necessarily reasonable people, but many people would suspect them of being biased." The judgment in Dimes v. Grand Junction Canal, is also relevant as it relates to the disqualification of the Lord Chancellor of England himself, when he was found to have had pecuniary interest in the case decided by him. Moreover, it is well known that Judges of superior Courts in Pakistan itself have always refrained from sitting on the Bench deciding cases in which there is even the slightest apprehension that they may be considered to be 'biased' (not to speak of being financially interested) in the matter and transfer the cases with the observations like: ‑ "I would not like to hear this case for personal reasons" or simply "may be placed before another Bench" This practice has been followed so rigidly that some Judges (e.g. Justice Douglas Young C.J.). even refrained from reading newspaper reports with respect to the cases before them. It may however be mentioned here that there can be exceptions to this practice. A Judge can always distinguish cases where any of the parties is resorting to a device, with an ulterior motive, so as to prevent him from sitting on the Bench dealing with a particular case, for example by engaging a Counsel who is barred from appearing before him. He may not disqualify himself in such cases.

27. Again, as pointed out by my learned brother, after referring to Islamic Republic of Pakistan v. Khan Wali Khan (PLD 1976 SC 57, pp.188‑189) it is true that in the case of Superior Courts it is entirely a matter for the Judge or the Judge concerned to decide as to whether or not he will sit in that particular case, and if he decides to sit, whether or not he would feel embarrassed. In Wali Khan's case the learned Judges, against whom bias (but not pecuniary interest) had been alleged, did not feel that they stood disqualified from sitting by such an allegation and did not feel any embarrassment in hearing the case. As such, in the present case also, it would ultimately depend upon the view taken by the learned Judges concerned, in the light of the precedent case‑law laid down and cited above, as also the long‑standing practice of the Judges of the superior Courts in this respect.

28. It may be mentioned that after hearing of this petition had concluded and the judgment was under preparation, the learned Attorney‑General made a further application on 1‑7‑1989 wherein he stated that in addition to his submissions made at the Bar he would respectfully like to draw the attention of the Hon'ble Chief Justice of Pakistan and other Judges of this Court, to the Code of Conduct framed by the Supreme Judicial Council. The portion of this Code which is relevant for the purpose of this order is clause (1) of Article 4 which reads as under:‑ "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." To decide whether or not any act on the part of the learned Judge falls within, or is outside, the ambit of this Article of the Code of Conduct, is in the exclusive jurisdiction of the Supreme Judicial Council. Therefore any observations on this aspect, which may tend to indicate whether or not an action of any learned Judge was in consonance with or was against rules of conduct prescribed in the said Code, would constitute an infringement on the jurisdiction of the Supreme Judicial Council. I, therefore, refrain from making any observation or comment whatsoever on this aspect of the matter. With these observations, the C.M.P. No.196‑R/89 (in Civil Review Petition No. 33‑R/89), stands disposed of. MUHAMMAD AFZAL ZULLAH, J.‑‑I agree that on examination of the Common Law principles and the relevant rule of natural justice prevailing in that system invoked by the learned Attorney‑General, this Civil Miscellaneous Petition should fail. As he has chosen not to argue and rely upon the relevant principles of Islamic Law on the subject, despite a brief reference to it during the arguments, it is not necessary in this case, to discuss that aspect. It may, however, be mentioned that in a recent judgment of this Court by a Bench of five Judges including three of us (Muhammad Afzal Zullah, Dr. Nasim Hasan Shah and Shafiur Rahman, JJ.) we dealt with one of Islamic Law principles relevant to a similar situation. See Mujeeb‑ur‑Rehmar and 3 others v. Federal Government of Pakistan through the Attorney General o Pakistan (1988‑ S C M R 897 ), Regarding the additional submission made by the learned Attorney‑General after the arguments, in a written application wherein reliance was placed on Clause (I) 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. Looked at from whatever angle this Civil Miscellaneous Petition is liable to be‑ dismissed. NASIM HASAN SHAH, J.‑‑I agree with the views expressed by my learned brother Shafiur Rahman, J. in the very valuable judgment proposed to be delivered by him, but being one of the authors in the Dissolution of National and Provincial Assemblies case it is only appropriate that I should also express my views in my own words: On 9‑3‑1989, the detailed reasons for the short order announced on 5‑10‑1988 in the Dissolution of National and Provincial Assemblies cases (Civil Appeals Nos. 314 to 317 of 1988 and Civil Petitions Nos. 392‑R and 393‑R of 1988) (hereinafter called the Dissolution Cases) were released. On the very next day, the Federal Government issued a Press release wherein it was, inter alia, averred‑‑ "The Supreme Court of Pakistan on 5‑10‑1988 by a Short. Order upheld the judgment, dated 27‑9‑1988 of the Full Bench of the Lahore High Court. The Lahore High Court inter alia had held that the appointment of the Prime Minister after the dissolution of the National Assembly by General Zia‑ul‑Haq on 29th May, 1988 was necessary under the Constitution to head the caretaker Government." and "That the caretaker Government appointed by the President from 29‑5‑1988 to 2‑12‑1988 was in violation of the Constitutional provisions. Consequently, the actions taken, orders passed or appointments made after 29th May, 1988 upto 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 Officers, Departments, the Registrars of the High Courts and Supreme Court arc 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 re‑affirmed by the President on the advice of the Prince Minister. Certain legislative measures may also be required to be taken after carefully considering the implications of the judgment of the Supreme Court." Mr. Muhammad Akram Shaikh, Advocate and President of the Multan Bar Association filed an application (C.M.P. No. 68‑R of 1989) on 13-3‑1989 seeking the following reliefs‑ (i.) to clarify the full and correct implications of our own detailed judgment in Civil Appeals Nos. ;114, 315, 316, 317/88 and C.Ps. Nos. 392‑R and 393‑R of 1988; (ii) to proceed in contempt against those who are deliberately misinterpreting it to derive political advantage out of it; (iii) to end the legal chaos and Constitutional crisis into which the country has been plunged." This application was disposed of on 18‑3‑1989 by a Bench of 4 Judges (consisting of the learned Chief Justice, Nasim Hasan Shah, S. Rehman and Ali Hussain Qazilbash, JJ.) wherein it was, inter alia, observed‑‑ "The portion of the Press Note reproduced above does not appear to correctly reflect our judgment in so far as it states that the consequence of the judgment is that actions taken, orders passed or appointments made after 29th May, 1988 upto 2nd December, 1988 by the President which were required to be taken, passed or made on the advice of the Prime Minister were illegal and required regularisation and re‑affirmance awaiting which the appointees should suspend the performance of their official duties. Such a relief had been asked for from the Court but was riot granted. The findings on all the matters in controversy were recorded to remove all doubts and ambiguities with regard to distribution of functions and powers under the Constitution for guidance in the future." It was, therefore, directed that the portion of the Press Note reproduced above should "stand deleted and be taken not to have been issued at all". Feeling dissatisfied with this order, the Federation of Pakistan filed a review petition (C.R.P. No.33‑11 of 1989) seeking the review of the order, dated 18‑3‑1989 passed in C.M.P. No.68‑R of 1989. In this petition, the first ground taken was‑‑ "That 12 Hon'ble Judges of this Hon'ble Court constituted the Full Bench which passed the short order on 5‑10‑1989. as well as the detailed judgment recorded and issued later on. The Government of Pakistan interpreted the judgment in the light of the observations made therein and issued a Press Note on 12‑3‑1989. The Press Note in fact became the subject‑matter of Civil Misc. No.68‑11 of 1989. The Civil Miscellaneous was heard by 4 Hon'ble Judges of this Hon'ble Court and disposed of by an order, dated 18‑3‑1989. It is respectfully submitted that the interpretation, clarification or any order relating to the detailed judgment could be passed by the same Hon'ble Bench constituting of 12 Judges of this Hon'ble Court. All the Hon'ble Judges were still available. Four Hon'ble Judges could not pass any order in respect of the Full Court judgment." This application came up for hearing on 29‑4‑1989 before the Bench of 12 Judges who had heard the original appeal and was partly argued on that date, when it was adjourned for further arguments on 27‑5‑1989. In the meanwhile however, the Federation of Pakistan submitted an application (No. C.M.P. 149‑8 of 1989 in C.R.P. No.33‑11 of 1989) requesting that 3 Judges of this Court, namely Mr. Justice S. Usman Ali Shah, Mr. Justice Ali Hussain Qazilbash and Mr. Justice Naimuddin who had been appointed by the President without the advice of the Prime Minister and stood affected by the judgment of this Court under review may not sit on the Bench when the matter is heard on 27‑5‑1989 as these Judges were personally interested in the matter and that Judges in such circumstances do not sit as Judges to decide a case. This request was declined by the learned Chief Justice in Chambers on 16‑5‑1989 observing, inter alia‑‑ "I have consulted the Judges who have signed the main judgment and they have stated that they will not feel embarrassed to hear the case." Undeterred the learned Attorney‑General moved another application (C.M.P. No.196‑R of 1989) on 23‑5‑1989 reiterating his earlier prayer that the 3 learned Judges likely to be affected should not sit on the Bench in view of the high traditions and principles of natural justice universally accepted that no one should act as Judge in his own cause and the matter be disposed of by the remaining 9 Judges who were parties to the earlier judgment in Dissolution Cases and also by any other Judge that might be available. This application alongwith Civil Review Petition (C.R.P. No.33‑11 of 1989) and other connected matters ultimately came up for hearing on 27‑6‑1989 again before the Full Court consisting of 12 Judges who had earlier disposed of Civil Appeals Nos. 314 to 317 of 1988 and Civil Petitions Nos. 392‑11/88 and 393‑R/88. At this hearing, the learned Attorney‑ General presented an elaborate argument in support of his prayer that the three learned Judges appointed between 29‑5‑1988 and 2‑12‑1988 should not participate in the proceedings. However, when asked to explain the error committed in the order, dated 18‑3‑1989 whose review was being sought, he declined to do so on the plea that he would come to the matter only after the prayer made in his application seeking withdrawal of the three Judges (C.M.P. No.196‑11 of 1989) was granted. The stand taken by the learned Attorney‑General in his miscellaneous applications is not easy to comprehend. It will be observed that the foremost ground taken by him in the petition seeking review of this Court's order dated 18‑3‑1989 (C . R .P. No.33‑11 of 1989) was that in so far as the judgment in the Dissolution Cases was rendered by 12 Judges any clarification etc. thereof could be made only by the same Bench consisting of 12 Judges (who had passed the original order) and that the Bench of 4 Judges (who had passed the subsequent order, dated 18‑3‑1989) could not pass any order in respect of the Full Court judgment. This plea was manifestly untenable as the order dated 18‑3‑1989 was passed in connection with the Press Note, dated 10‑3‑1989 issued by the Ministry of Law, Justice and Parliamentary Affairs purporting to implement and interpret this Court's detailed judgment passed by the Bench of 12 Judges. The question raised before the Bench of 4 Judges passing the order, dated 18‑3‑1989 was whether the interpretation placed in the Press Note issued by the Ministry of Law, Justice and Parliamentary Affairs on the said judgment of the Court was correct. This matter could be decided by any Bench of this Court. It was a normal case coming before the Court wherein one party claimed that it was purporting to follow and implementing a decision of this Court while some other party was disputing this claim and the question before the Court was to ascertain as to which, of them was actually right. In these circumstances, no occasion arose for constituting a Bench consisting of all the Judges who had delivered' the earlier judgment for deciding this question. Be that as it may the review petition (C . R.P. No.33‑11 of 1989), was, as requested, ordered to be placed before a Bench of the same 12 Judges who heard the earlier cases and the matter was thereafter partly heard by it on 29‑4‑1989 when it was adjourned to 2?‑5‑1989 for further hearing. However, before the matter came up for further hearing on the adjourned date, one application followed by another was submitted raising a totally new issue namely that 3 of the Judges of the Bench of 12 Judges, who were parties to the earlier judgment rendered in the Dissolution Cases should not now sit on the Bench which was constituted on its own request, to interpret the said judgment. It is noteworthy that no objection was raised by the learned Attorney‑General to this effect when he appeared before the Bench of 4 Judges on 18‑3‑1989, where one of such Judges (Mr. Justice Ali Hussain Qazilbash) was also sitting. Again, no such plea was raised when the main petition for review (C.R.P. No.33‑R of 1989) came up for hearing on 29‑4‑1989. It was only after the matter was adjourned on 29‑4‑1989 for further hearing that this new issue was raised first by the application (C .M .P. No.149‑R of 1989 in C.R.P. No.33‑R of 1989)~and after its rejection on 16‑5‑1989 by the learned Chief Justice in Chambers by further application (C.M.P. No.196‑R of 1989). In the last‑mentioned application it was again requested that the prayer made in the earlier application (C.M.P. No.149‑R of 1989) be accepted but it went on to add that in case "this prayer is not acceded to 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". Notwithstanding this unhappy prospect and however desirous we may be to see the learned Attorney‑General complete his submissions on the review petition, being duty bound to do right, in all circumstances, no other course, but to do what we conceive is the right, is open to us. The very foundation of the learned Attorney‑ Generals submission that the appointment, inter alia, of a Judge of the Supreme Court not made on the advice of the Prime Minister is illegal, is itself debateable. The question whether a Judge. who has been appointee by the competent authority (the President), after consultation with the specified authority (Chief Justice of Pakistan) can be said to have been appointed illegally because his appointment was not made on the advice of the Prime Minister or Cabinet is not free from difficulty and a serious argument would be necessary to resolve it. Since, however, arguments on this aspect of the matter have yet to be addressed, nothing further need be said in regard thereto, at this stage. Be that Fps it may the above question can Arise, if at all, only if the view expressed in the order. dated 18‑3‑1989 of the Bench or 4 Judges to the effect that the findings on all matters in controversy were recorded in the Dissolution Cases to remove all doubts and ambiguity with regard to the distribution of functions and powers under the Constitution for guidance .in the future and things done during the period from 29‑5‑1988 to 2‑12‑1988, even though some of them were not in accordance with the Constitution, allowed to prevail, is reversed. The said view was grounded on the facts that despite the finding that the Assemblies were unlawfully dissolved they were not restored. Instead the orders for holding new elections to replace them were upheld. Again despite the fact that no Prime Minister was appointed to head the care‑taker Government and although it was found that it was necessary that he must head the Government at all times under the Constitution, the Ordinances promulgated on its advice, inter alia, the Delimitation of the Constituencies (Amendment) Ordinance, 1988, were not only upheld but found to have paved the way for the General Elections held on 16th November and 19th November, 1988. But the Federation of Pakistan is now questioning the view at least in so far as acts done, actions taken, orders passed and appointments made by the President during the said period is concerned and in this connection the following passage occurring in the judgment of my learned brother S. Rehman, J. is mainly being relied upon: "In this background the Constitution does not visualise a caretaker Cabinet without a Prime Minister. The absence of Prime Minister from a care‑taker Cabinet alters for the period under discussion the very character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Court can neither countenance nor condone all this at this stage and in these proceedings. Such violation and breaches concern the very essential features of the Constitution, What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us." Apart from the fact that this passage occurs in the judgment of my learned brother to which only one of my learned brothers concurred, while nothing in support of these observations has been said in the main judgment delivered by the remaining 10 Judges; even my learned brother S. Rehman, J. in his aforesaid judgment has himself clarified the purport of his above observations by observing‑‑ "The mere transitory continuance of such a pre‑existing state of affairs, with an eye on the immediate and prime objective of holding a timely and fair General Election prompts us not to interfere in these proceedings with those matters, and the prevailing affairs." Accordingly, unless the main judgment in the Dissolution Cases is reviewed it is not possible to accede to the prayers made in the miscellaneous applications. Indeed this is all the more necessary because Haji Saifullah (the petitioner in the Dissolution Cases) has also sought review of the judgment passed in the aforesaid ,Dissolution Cases by another review petition (C.R.P. No.30‑R of 1989) praying that full effect be given to all the findings recorded by the Court including the finding that the Assemblies were illegally dissolved (by restoring the said Assemblies and allowing them to function); declaring the Ordinances promulgated after the unlawful dissolution of the National Assembly to be illegal and ultra vires, holding the appointments etc. made in this period to be null and void. This review petition (C.R.P. No.30‑R of 1989) has been fixed for hearing alongwith Civil Review Petition No. 33‑R of 1989 filed. by the Federation of Pakistan. In short, while in the review petition filed by the Federation of Pakistan (C.R.P. No.33‑R of 1989), the interpretation placed on the judgment in the dissolution cases is being questioned only so far as appointments etc. made between 29‑5‑1988 and 2‑12‑1988 is concerned; and in the miscellaneous applications submitted thereafter (C.M.P. No.149‑R of 1989 and C.M.P. No.196‑R of 1989) the prayer made is that the Judges appointed during this period should not sit to hear the review petition (C.R.P. No.33‑R of 1989) this prayer cannot be granted unless it is held that the interpretation placed on the order, dated 18‑3‑1989 by the Bench of 4 Judges that the findings in the judgment in the Dissolution Cases were intended only to apply in the future and not to past transactions, is reversed. And so far as the question of the interpretation and proper effect of the judgment in the Dissolution Cases is concerned, this is also desired by Haji Saifullah in his review petition (C.R.P. No.30‑R of 1989). But he has raised no objection to all the 12 Judges sitting in his review petition who were party to the said judgment. Indeed this course was favoured even by the Federation of Pakistan in the main review petition (C.R.P. No.33‑R of 1989) and in my humble opinion this, in fact, is the only appropriate course. I would, with these observations, agree with the order proposed by my learned brother S. Rehman, J. ABDUL KADIR SHAIKH, J.‑‑We are dealing with a very unusual prayer made by Federation of Pakistan in this Civil Miscellaneous Petition which has arisen out of an important judgment of this Court on the Constitutional empasse that arose following dissolution of National Assembly of Pakistan on 29‑5‑1988 by the then President of Pakistan, in purported exercise of power under Article 58(2)(b) of the Constitution, and almost simultaneously, dissolutions of all Provincial Assemblies by the respective Provincial Governors. The dissolutions of National Assembly of Pakistan and the Provincial Assembly of Punjab and the appointment of a caretaker Cabinet, without a Prime Minister, were successfully challenged in Constitutional Petitions filed in Lahore High Court. Learned Judges of the Full Bench who dealt with the Constitution Petition held that "the grounds given for dissolution of National Assembly and the Provincial Assembly of Punjab are so vague, general or non‑existent that the orders are not sustainable in law". Learned Judges, however, took the view for the reasons elaborately stated in the judgment that "the discretionary jurisdiction under Article 199 of the Constitution will not permit restoration of the dissolved Assemblies. Rather it will call for that no interference is made in the process of bringing about democratic polity". As regards the prayer for grant of direction for appointment of a properly constituted caretaker Cabinet with a Prime Minister, learned Chief Justice held that "it would appear to be that the office of Prime Minister is necessary for running the affairs of the State at all times. However, in exercise of discretionary jurisdiction under Article 199(1)(b)(ii) of the Constitution we pass no order as the matter can be set right sooner or later and to avoid any confusion, crisis or collapse. Restraint is part of judicial discretion". !n this connection, learned Chief Justice agreed with the learned Attorney‑ General, who appeared for the Federation of Pakistan, that "caretaker Cabinets have to take care of the day‑to‑day administration of the State. There may be no bar to take policy decisions if so required by the circumstances. He is right. Caretaker Cabinets have to confine themselves to take care of the day‑to‑day administration of the State. They can take all decisions requiring attention or action, may be having far‑reaching effects, like in respect of war and peace or earthquake or floods. But they can neither forget the predominant position of their being care‑taker nor can they take undue advantage of their position either for themselves or for their political parties. They have to be impartial to everybody, including their rivals or opponents in the political fields. They cannot take advantage of their official position of Caretaker Government at the expense of other political forces or people at large. Neutrality, impartiality, detactment and devotion to duty to carry on day‑to‑day affairs of the State without keeping in view one's own interest or of one's party are the sine qua non of a Caretaker Cabinet". Rustam S. Sidhwa, J. and Muhammad Afzal Lone, J. , agreed with the views of the learned Chief Justice although for the reasons recorded separately .by them. Lehrasap Khan,J. also concurred with these views, however he added a separate note on the position of Caretaker Cabinet impressing the fact that "the Caretaker Cabinet, envisaged in Article 48(5)(b) of the Constitution of Islamic Republic of Pakistan has to be headed by the Prime Minister, as is evident from the provisions of Article 91(8) ibid,. which reads: "Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or as Minister of State during any such period. " In this behalf, Gul Zarin Kiani, J. , another member of the Full Bench, emphasised as under: "In my view, a Caretaker Cabinet is a Cabinet to be headed by a Prime Minister and without it, it may not appear to be complete. A living body without a head is unthinkable. As regards the role of such a Caretaker Cabinet, it was observed by Sabyasachi Mukherji, J. in Madan Murari Verma v. Choudhuri Charan Singh and another AIR 1980 Cal. 95. 'There is no mention of any Care‑taker Government as such in our Constitution or in the Constitutional law, though Sir Ivor Jennings has described in his book‑Cabinet Government, Third Edition, page 85 the ministry that was formed by Mr. Churchill in England after the war before and pending the General Election in 1945 as Care‑taker Government. But an extraordinary situation like the present, in my opinion, calls for a Care‑taker Government and, therefore, the respondent No.1 and his Council of Ministers can only carry on day‑to‑day administration in office which are necessary for carrying on 'for making alternative arrangements'. In effect the President in my opinion is, therefore, not obliged to accept the advice that the respondent No.1 and his Council of Ministers tender to him except for day‑to‑day administration and the Council of Ministers and the respondent No.l should not make any decisions which are not necessary except for the purpose of carrying on the administration until other arrangements are made. This in effect means that any decision or policy decision or any matter which can await disposal by the Council of Ministers responsible to the House of People must not be tendered by the respondent No.l and his Council of Ministers. With this limitation the respondent No.l and the Council of Ministers can only function. And in case whether such advice is necessary to carry on the day‑to‑day administration till 'other arrangements are made' or beyond that, the President, in my opinion, is free to judge. It is true again that this gives the President powers which have not been expressly conferred by the Constitution but, in my opinion, having regard to the basic principle behind this Constitution under Article 75(3) read with Article 74(1), in the peculiar facts wind circumstances of this case is the only legitimate, legal and workable conclusion that can be made.' Beyond this statement, I do not propose to go further." This Court on appeal against the impugned judgment of the High Court also took the view that the orders of the President of Pakistan and the Provincial Governors dissolving the National Assembly of Pakistan and the Provincial Assemblies respectively were without lawful authority, and also that the formation and the functioning of a Care‑taker Government without a Prime Minister is in violation of the Constitutional requirement under Article 48(5)(b). The opinion of the Court was expressed by two Judges, Mr. Justice Dr. Nasim Hasan Shah and Mr. Justice Shafiur Rahman. The former summarised it as under: "The reference to the provisions of the Constitution made above shows that the office of the Prime Minister is necessary at all times for running the affairs of the country and that he should have been appointed to head a Care‑taker Cabinet." Mr. Justice Shafiur Rahman observed: "Yet another breach of Constitutional provision was the non‑compliance with the requirement of clause (5) (b) of Article

48. It requires the appointment of a Care‑taker Cabinet immediately on dissolution of the National Assembly. The Cabinet has been described in clause (1) of Article 91 of the Constitution as hereunder:‑‑ 'There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions.' Clause (8) of Article 91 provides as follows:‑‑ 'Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which' the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or Minister of State during any such period.' Clause (2) of Article 92 provides as hereunder:‑‑ 'Before entering upon office, a Federal Minister or Minister of State shall make before the President oath in the form set out in the Third Schedule.' The relevant portion of the Oath of Federal Minister or a Minister of State prescribed in Third Schedule of the Constitution reads as hereunder:‑‑ 'I,‑‑‑‑, do solemnly swear that I will bear true faith and allegiance to Pakistan: That, as Federal Minister (or Minister of State); I will discharge my duties .as Federal Minister (or Minister of State), or as may be specially permitted by the Prime Minister. May Allah Almighty help and guide me (A'meen).' In this background the Constitution does not visualise a Caretaker Cabinet without a Prime Minister. The absence of Prime Minister from a Caretaker Cabinet alters for the period under discussion the verb character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Courts can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution. What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us.'' Subsequent to the announcement of the judgment of this Court, the Federation of Pakistan issued a Press Release which reads as under: "GOVERNMENT OF PAKISTAN MINISTRY OF LAW, JUSTICE & PARLIAMENTARY AFFAIRS ISLAMABAD PRESS RELEASE March 10, 1989 The Supreme Court of Pakistan on 5‑10‑1988 by a Short Order upheld the judgment. dated 27‑4‑1988 of the Full Bench of the Lahore High Court, The Lahore High Court inter alia had held that the appointment of the Prime Minister after the dissolution of the National Assembly by General Zia‑ul‑Haq on 29th May, 1988 was necessary under the Constitution to head the care‑‑taker Government. In this regard the Supreme Court while giving the detailed reasons in support of their Short Order, dated 5‑10‑1988 has inter alia held‑‑‑ "The reference to the provisions of the Constitution made above show that the Office of the Prime Minister is necessary at all times for running the affairs of the country and that he should have been appointed to head a caretaker cabinet." The Supreme Court has further observed:‑‑ "In this background the Constitution does not visualise a caretaker Cabinet without a Prime Minister. The absence of Prime Minister from a care‑taker Cabinet alters for the period under discussion the very character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Court can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution. What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us. "Finally, the breach concerning the alteration in the Oath of Ministers, the learned Attorney‑General had no explanation for it. We do not find any mention of it even in the record. What has been accomplished by an unwritten executive fiat amounts to a material amendment of the Constitutional Provision which could not be accomplished without recourse to Provisions of Part XI of the Constitution." The judgment is given by 11 Judges of the Supreme Court and all of them have unanimously agreed with High Court that the caretaker Government appointed by the President from 29‑5‑1988 to 2‑12‑1988 was in violation of the Constitutional provisions. Consequently tire actions taken, orders passed or. appointments made after 29th May, 1988 upto 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 tire High Courts and Supreme Court are requested immediately to contact the Ministry of law and Justice with regard to such actions, orders acid 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". After the Press Release. Mr. Muhammad Akram Sheikh, Advocate and President of Multan Bar Association filed a Miscellaneous Petition in this Court on 13‑3‑1989 praying; that "action for contempt of this Hon'ble Court /clarification of the order be made. by this Hon'ble Court so that the Constitutional chaos into which the country has been plunged may be. ended". The Constitutional crisis, according to .Mr. Muhammad Akram Sheikh had arisen due to the fact that "the Hon'ble Judges appointed during this period (between 29‑5‑1988 and 2‑12‑1988) have been asked to suspend their work and, in particular, since Judges who had been deputed to work at the Multan Bench have been asked not to work with the result that the Bench of the High Court at Multan has come to a stand still". The Miscellaneous Petition was disposed of by a Bench. of 4 Judges on 18‑3‑1989 with the following observations and directions: "The portion of the Press Note reproduced above does not appear to Correctly reflect our judgment in so far as it states that the consequence of the judgment is that actions taken, orders passed or appointments made after 29th May, 1988 up to 2nd of December, 1988 by the President which were required to be taken, passed or made on the advice of the Prime Minister were illegal and required regularisation and re‑affirmance awaiting which the appointees should suspend the performance of their official duties. Such a relief had been asked for from the Court but was not granted the findings on all the matters in controversy were recorded to remove all doubts and ambiguities with regard to distribution of functions and powers under the Constitution for guidance in the future. In case the Federation of Pakistan wants to seek a different conclusion, it is open to it 'to bring appropriate proceedings before this Court which will be considered on merits. We, therefore, direct that the portion of the Press Note reproduced above should stand deleted and be taken not to have been issued at all." Aggrieved by this order the Federation of Pakistan filed a Petition for Review on several grounds, inter alia: (1) That 12 Hon'ble Judges of this Hon'ble Court constituted the Full Bench which passed the short order on 5‑10‑1988 as well as the detailed judgment recorded anti issued later on. The Government of Pakistan interpreted the judgment in the light of observations made therein and issued a Press Note on 12‑3‑1989. The Press Note in fact became the subject‑matter of Civil Misc. No.68‑R/89. The Civil. Misc. was heard by 4 Hon'ble Judges of this Hon'ble Court and disposed of by an order, dated 18‑3‑1989. It is respectfully submitted that the interpretation, clarification or any order relating to the detailed judgment could be passed by the same Hon'ble Bench constituting of 12 Judges of this Hon'ble Court. All the Hon'ble Judges were still available. 4 Hon'ble Judges could not pass any order in respect of the Full Court judgment. (2) That the High Court in its judgment had inter alia held that the office of the Prime Minister is necessary at all times for running the affairs of the country remained without a Prime Minister from 29‑5‑1988 to 2‑12‑1988. (3) It is the contention of the petitioner that no specific declaration to this point was required and the result of the judgment of this Hon'ble Court is that 'all such acts performed during the relevant period in the absence of the Prime Minister are rendered illegal and need to be legalised or regularised'. In fact, Mr. Justice Shafi‑ur‑Rehman in a separate note while elaborating the legal consequences held that the legal consequences on individual acts done or actions already taken and suffered shall be decided in individual cases, more appropriately brought before this Hon'ble Court. It is, therefore, absolutely clear that such violations and breaches which arise because of absence of the Prime Minister during the relevant period were neither to be condoned nor ratified by the Courts but the legality of such acts were left to be decided afterwards. It is the submission raised by the petitioner that by passing order, dated 18‑3‑1989 this important finding has been made vague which is bound to create extremely serious repercussions." Before this Review Petition could be taken up the Federation of Pakistan filed a Miscellaneous Petition (being C.M.P. No.149‑R of 1989) praying as under: "On behalf of the Federation of Pakistan, it is respectfully submitted that consistent with high traditions of our judiciary and the principle of natural justice i.e. that no person shat! be a Judge in his own cause, it is submitted that the three Judges of this Hon'ble Court who had been appointed by the President without the advice of the Prime Minister and had been affected by the judgment of this Hon'ble Court under review one way or the other, are requested that they may not sit on the Bench on 27th May, or on any date thereafter when the matter is heard as that will set a very bad precedent as Judges personally interested in the matter do not sit as Judges to decide a case." This Miscellaneous petition was disposed of by my Lord Chief Justice in Chamber on 16‑5‑1989 with the following order: "I have heard the learned Attorney‑General but I am afraid it will not be possible for me to disturb the constitution of the hull Court when it is seized of the case, and the case has already been partly argued and is now fixed for further hearing. It is also of significance to mention that in the case under review, the jurisdictional defect in the constitution of the Bench which decided the case is also involved, as a result of the ground taken in the review petition that the case should have been heard by the Full Court which heard and decided Saifullah's case. I have consulted the Judges who have signed the main judgment and they have stated that they will not feel embarrassed to hear the case." It was thereafter that the present Miscellaneous Petition (C .M.P. No.196‑R of 1989) was moved explaining the reasons why the earlier Miscellaneous Application was moved and it is submitted as under: (1) This application (C . M . P. No.149‑R of 1989) was filed keeping in view the high traditions and principles of natural justice universally accepted that no one should act as Judge in his own cause. (2) It is respectfully submitted that this order (dated 16‑5‑1989), has been passed on misunderstanding that the case had already been partly argued and now fixed for further hearing. As submitted above, the Review Petitions are always heard at the preliminary stage and thereafter "if a case is made out for full hearing, then the petitions are fixed for final disposal. (3) That Rule 8, Order XXVI of the Supreme Court Rules also provides ‑that 'as far as practicable' the application for Review shall, be posted before the same Bench that delivers the judgment or order sought to be reviewed. The contentions raised in the Review Petition inter alia relate to the competency of the three Honourable Judges to hold their office and as such it is the demand of justice that these Honourable Judges may not participate in the adjudication of the matter. The rule that the Review Petition may be heard by the same Judges has exceptions. One of these is based upon the principle, that 'no one should be a Judge in his own cause'. Secondly a larger bench can hear a Review which includes those Judges who did not pass the order/judgment under review as was done by this Hon'ble Court in Mr. Zulfikar Ali Bhuttos Review Petition. Therefore, the clarification, if permissible, should be made by the remaining 9 Judges who were party to the judgment of 10‑3‑1989 and also by any other Judge that might be available. Needless to point out that justice should not only be done but must also appear to be done.. In the end it is prayed as under: "That under the circumstances detailed above, it is again respectfully prayed that this Honourable Court may be pleased to accept the prayer made in C:M.P. No.149‑R/1989 as Rule 8 of Order XXVI is also prefixed with 'as far as practicable'. If however this prayer is not acceded to by this Honourable 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." At the hearing of the application, Mr. Yahya Bakhtiar, learned Attorney‑General submitted that it is an established principle that no Judge can be a Judge in this own cause or in a case in which he is personally interested, not because his decision may be in his favour, but on the principle that justice must not only be done but seen to be done. Although this principle is very well‑established, yet in order to highlight it, learned Attorney‑General referred to Chaper 3 in "Natural Justice" by H . H . Marshall (1959 Edition) in which reference is made to Bowen L.J's famous quotation in "Lesson v . General Council of Medical Education etc.," (1889) 43 Ch. D. 366, 385,, that "Judges, like Caesar's wife, should be above suspicion" . The principle that "no man shall be a judge in his own cause" is not confined merely to the cases where the Judge is an actual party to a cause, but applies to a cause in which he has an interest. Such interest (or bias) which disqualifies must be one in the matter to be litigated, and per Field J. in "R. v. Mayor and Justices of Deal", (1881) 45 L.T. 439 "the interest or bias which disqualifies is an interest in the particular case, something reasonably likely to bias or influence the minds of the Magistrates in the particular case." Lush J., in "Serjeant v. Dale" (1877) 2 Q.B.D. 558, 567 observed, "the reason for the strictness of the rule can be traced more to considerations of public policy than to the actuality of the bias affecting the Judge". The leading judgment on this principle is "Dimes v. Grand Junction Canal" (1852) 3 H.L. Cas. 759 quoted by Marshall in "Natural Justice" is in the following words: "It is a case of the highest possible authority because it was a decision of the House of Lords, presided over by the Lord Chancellor of the day (Lord St. Leonards), as to the effect of the conduct of a previous Lord Chancellor (Lord Cottenham). The facts were that a public company, which was incorporated, filed a bill in equity against a land owner, in a matter largely involving the interests of the company. The Lord Chancellor (Cottenham) had an interest as a shareholder in the company to the amount of several thousand pounds, a fact which was unknown to the defendant in the suit. The cause was heard before the Vice‑Chancellor, who granted the relief sought by the company. The Lord Chancellor, on appeal, affirmed the order of the Vice‑Chancellor. It was held on appeal to the House of Lords that the Lord Chancellor (who had by then ceased to hold office as such) was disqualified, on the ground of interest, from sitting as a Judge in the cause and that his decree was therefore voidable' and must consequently be reversed. It was also held that the Vice‑Chancellor was under the Administration of Justice Act, 1813, a Judge subordinate to, but not dependent on the Lord Chancellor and that consequently the disqualification of the Lord Chancellor did not affect him; but that his decree might be made the subject of appeal to the House of Lords. Lord Campbell C.J. said: No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but it is of the last importance that the maxim that 'no man is to be a Judge in his own cause' should be held sacred. And‑ that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took part in the decision. And it will have a most salutary influence on these tribunals when it is known that this High Court of last resort, in a case in which the Lord Chanellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest but to avoid the appearance of labouring under such an influcence." And it was said by lord Cave L.C. in the modern case Frome United Breweries Co. v. Bath Justices (1926) A.C. 586, 590: "If there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be held to act judicially; and it has been held over and above again that, if a member of such a body is subject to a bias, whether financial or other, in favour of or against either party to the dispute or is in such a position that a bias must be assumed he ought not to take part in the decision or even to sit upon the tribunal." Learned Attorney‑General also referred to paragraphs 67 and 70, Volume I of Halsbury's Laws of England (Fourth Edition), which are to the following effect: "

67. Interest and likelihood of bias.‑‑It is a fundamental principle that, in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a judge in his own cause. Hence, where persons having a direct interest in the subject‑matter of an inquiry before an inferior tribunal take part in adjudicating upon it, the tribunal is improperly constituted and the Court will grant an order of prohibition to prevent it from adjudicating, or an order of certiorari to quash a determination arrived at by it, or such other remedy (for instance, an injunction or a declaration) as may be appropriate. The principle extends not only to Courts and tribunals, but also to other bodies, including public authorities, determining questions affecting the civil rights of individuals. At common law, a broad distinction is drawn, for the purpose of applying this principle, between situations where an adjudicator has a direct pecuniary or proprietary interest in a matter before him, and those where lie has a different form of interest which may lead to an appearance or likelihood of bias on this part, disqualification being incurred more readily in the former class of situations. If, however, the disqualifying effect of a pecuniary interest has been removed by statute, it is still material to consider whether the nature of that interest gives rise to a likelihood of bias." "

70. Effect of participation by disqualified adjudicator, ‑‑If one of the adjudicators has ‑a direct pecuniary interest in the issue, the proceedings will be set aside even though none of his fellow adjudicators was thus disqualified; and it appears that the same principle applies where one adjudicator is subject to disqualification for likelihood of bias. In such cases the Court will not consider whether the disqualified person did in fact influence the decision. Where a person subject to disqualification leaves the impression that he is participating in the proceedings, the general rule is that the proceedings may be set aside even though he has not in fact taken an actual part in them. If he is present during the proceedings, they will not be immune from challenge unless he has made it clear that he is not present as a participant ." Learned Attorney‑General also extensively referred to the commentaries from Judicial Review of Administrative Action by S. A. De‑Smith, to highlight the principle that ."no man is qualified to adjudicate in any judicial proceedings in the outcome of which he has a personal interest and this rule applies no matter how exalted the tribunal or how trivial the interest may be". Learned Attorney‑General submitted that these lofty principles of justice have all along been. followed by the superior Courts of Pakistan, and referred to the case of. Anwar and another v. The Crown (P L D 1955 F C 185) in which the following observations were made: "There is a species of bias which vitiates judicial proceedings irrespective of the correctness or otherwise of the result, but that is not because bias, whatever form it may assume, avoids the result of judicial proceedings, but because the Judge with that kind of bias is, on grounds of public policy, disqualified to be a Judge. Thus, no Judge can be a Judge in his own cause, or in, a case in which he is personally interested, not because his decision must invariably be in. his own favour but on the principle that justice must not only be done but seen to be done, and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication, and its result will be vacated by the Court of Appeal at the instance of the dissatisfied party. Instances of such bias are recognised in our law in section 556 of the Code of Criminal Procedure, and will also be found in Dimes v. The Grand Junction Canal (1852) H.L.C. 759‑794 and Rex v. Sussex Justices (1924) 1 K.B. 256." Learned Attorney‑General also relied on the decision of this Court in Fazal‑e‑Haq, Accountant‑General. West Pakistan v., The State P L D 1960 S C (Pak.) 295 wherein suo motu proceedings for a writ of mandamus were initiated by the High Court and the Supreme Court held that "the entire proceeding in this case is misconceived and void and there has been violation of two important juridical principles; (1) that the extraordinary jurisdiction relating to a writ can only be exercised by the High Court when moved by a party whose legal rights have been denied; and i1~ in this case the High Court as a whole considered itself aggrieved by the objection of the Accountant General in taking the action, it has violated (Z2 the principle that nobody should sit as a Judge of his own cause". Learned Attorney‑General, however, explained that when a general challenge is made against the dissolutions of the National Assembly of Pakistan and the Provincial Assemblies and to the legitimacy of the Governmental set up and to the validity of its acts and deeds, the principle of interest and bias would not. be attracted, but after the decision of the Court if some of those very issues are once again before the Court with the reasons and the findings of the Court having become known through a detailed judgment, the implication of bias and interest would surely be attracted. In this regard, learned Attorney‑General drew our attention to the case of Miss Asma Jilani v. The Government of the Punjab and another P L D 1972 S C 139 wherein legitimacy of usurper was an issue, and the Judges appointed by the usurper participated in the decision. Learned Attorney‑General emphasised that if the principle of condonation of certain acts of the usurper, including appointment of the Judges, had not been applied in that case, the principle of interest and bias was certainly attracted. Learned .Attorney‑General has indeed referred to a very well‑settled and salutary principle of high standing . relating to administration of justice and to the cause of judicial adjudication. The superior Courts of Pakistan have always maintained and applied these lofty principles. and as an established practice, if even a simple mention is made on behalf of a party to the litigation that an interest or bias of even the slightest magnitude may perhaps be T `1 involved, the Presiding; Judge or a member of the Bench, unless ,satisfied that it is a mala fide plea, unhesitantly withdraws himself from the cause for the reason of public policy and aherence to the above principles, rather than the actuality of the personal interest or a bias affecting him. The request made in the miscellaneous petition under consideration is founded on these principles, for, the central issue involved in the main Review Petition is the validity of the appointments made between 29‑5‑1988 and 2‑12‑1988 by the President which were required to be made on the advice of the Prime Minister and, it is urged on the basis of the dictum laid down by this Court in the main judgment in Federation of Pakistan v. Muhammad Saifullah Khan P L D 1988 S C 166 that the formation and the functioning of a Caretaker Cabinet without a Prime Minister was in violation of the Constitutional requirement under Article 48(5)(b). It is for this reason that it is submitted that the participation of three Hon'ble judges of this Bench who are likely to be affected by the aforesaid judgment of this Court, and by the decision in the Review Petition, one way or the other, may not participate in the adjudication of the matter, "in view of the high traditions and principles of nature justice universally accepted that no one should act as a Judge in his own cause". 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 1 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 menifested an attitude of instransigence 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 Courts. This Court highlighted this principle in the case of Mian Jamal Shah v. Election Commission (P L D 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 persons 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 actions 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 Court, which could be urged in support of such a provision." This principle was further highlighted by Muhammad Yaqub All, C.J. in Abrar Hassan v. Government of Pakistan PLD 1976 SC 15 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 the 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. Se 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 Hussain 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 U 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 1W nine Judges of the Bench, to decide in their judicious segacity 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. ORDER OF THE COURT In accordance with the view of the majority of the Judges the application (C.M.P. No.196‑R/1989) is dismissed. Let the review matters be taken up for hearing. (Sd.) Muhammad Haleem, C.J. (Sd.) Aslam Riaz Hussain, J. (Sd.) Muhammad Afzal Zullah, J. (Sd.) Nasim Hasan Shah, J. (Sd.) Abdul Kadir Shaikh, J. (Sd.) Shafiur Rahman, J. (Sd. ) Javid lqbal, J. (Sd.) Ghulam Mujaddid. J. (Sd.) Saad Saood Jan, J. (Sd.) Usman Ali Shah, J. (Sd.) Ali Hussain Qazilbash, J. (Sd.) Naimuddin, J . Announced in open Court today on 6‑8‑1989 at Karachi. M. B. A./139‑F/S Civil Miscellaneous Petition dismissed