1990 SCMR 189 (PLP)

However, since the appellant, Federal Government who had raised the aforesaid questions is not willing to proceed further for reasons not disclosed to the Court and the majority of members on the Bench agree that no further hearing of the matter be continued, His Lordship decided to go alongwith the majority in the circumstances. Yahya Bakhtiar, Attorney‑General for Pakistan, S. A. Wadood, Dy. Attorney‑General, M. Sharif Advocate Supreme Court and Fazale Hussain, Advocate‑on‑Record for Appellant. M. D. Tabir (in person) and S. Inayat Hussain, Advocate‑on‑Record for Respondent No.l. Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Zakiuddin Pal, Senior Advocate Supreme Court, M. Zahoorul Haq, Senior Advocate Supreme Court, Khalid Anwar, Advocate Supreme Court, Manzoor Ahmad Khan, Advocate Supreme Court, M. Akram Shaikh, Advocate Supreme Court, Abdul Hakeem Kundi, Advocate Supreme Court and Nizam Ahmad, Advocate- on‑Record for Respondent No.2. Ali Ahmad Fazeel, Senior Advocate Supreme Court, Aziz A. Munshi, Senior Advocate Supreme Court assisted by Ch. Ijaz Ahmad, Advocate Supreme Court, Iftikhar Muhammad, A.‑G, Baluchistan with M. Ashraf Tanoli, Advocate Supreme Court, J. D. Akberh, A.‑G., N.‑W.F.P., Maqbool Elahi MWik, A.‑G., Punjab, Abdul Hafeez Lakho, A.‑G., Sind, Muhammad Nawaz Marri, President, Baluchistan High Court Bar Association, Kazi Muhammad Anwar, President N.‑W.F.P., High Court Bar Association (only on 12‑11‑1989), Kargn at Nazir Bhindari, President Lahore High Court Bar Association, Sharaf Faridi, President, Sind High Court Bar Association: Amicus curiae. Dates of hearing: 12th, 13th, 14th, 15th, 16th, 19th, 20th, 21st, 22nd and 23rd November; 2nd, 3rd, 5th, 6th, 9th and l0tb December, 1989. The learned Deputy Attorney‑General on instructions from the Seretary, Ministry of Law, Justice and Provincial Co‑ordination, states that the Federal Government will be satisfied if para. 5 of the impugned order dated 21st December, 1988, of the Lahore High Court is excised and this appeal be disposed of accordingly. The offending portion in para. 5 is as follows: "In any case the Prime Minister does not find mention in Article 193, amongst the persons, after consultation with whom the president is required to appoint the Judges. It is Article 48(1) which ordains that in exercise of his functions the President shall act in accordance with the advice of the cabinet or the Prime Minister. But Article 193 specifically deals with the appointments of the High Court Judges and it is well settled that where in a Statute there are two provisions, one of which is of specific character and the other general one, then the specific provision ought to be applied unfettered by the general one. This principle has also been exhaustively discussed in Government of Punjab v. Naila Begum P L D 1987 Lah. 336 to which one of us (Lone, J.) was a party:" Against which exception was taken by the Federal Government on the ground that the required notice under Order 27‑A, Rule 1, was not given to the Attorney General before determining the constitutional question. Learned counsel for the respondent No.2. Mr. Sharifuddin Prizada stated that he had no objection to the disposal of the appeal in the above manner as it l seemed to him to be a realistic and a practical approach. Respondent No .l, however, objected to the disposal of the appeal on this short ground, but as he had not filed any appeal against the order, it became final as against him. As such we do not find any substance in his contention. Accordingly, the offending portion be excised, but the judgment in all other respects stands. There will be no order as to costs. ABDUL KADIR SHAIKH,,J.‑‑I feel that since it is the primary and sacred function of this Court to resolve all constitutional controversies relating to the interpretation of the Constitution, the appeal should be heard and decided on the questions of law of fundamental public importance on which leave to appeal was granted, namely, interpretation of Constitution concerning "the function of the Parliamentary Democracy in our country" so that an authoritative decision of this Court be rendered, for, if left for decision in the future, the consequences will be awkward, inconvenient and not conducive to proper administration of justice as these would subvert the legitimacy of the very appointments of the Judges themselves. If left undecided, these issues are also bound to cause confusion among the litigants in view of uncertainty with regard to the validity of the judgments and decisions rendered by the Judges whose appointments in the office as Judges would be simultaneously the subject‑matter of litigation, perhaps in the same Courts. Such uncertainty would have also the consequent odium attached to such a situation. Certain consequences are bound to be irrevocable, for example, already expired jail sentences passed under the judgments recorded by the Judges of the superior Courts whose appointments may be held to be illegal and without lawful authority on the basis of the decision on the issues which are to be decided in this appeal. However; since overwhelming majority of the Judges is of the view that the appeal should be disposed of in the terms of the statements made by the learned counsel for the parties, I reluctantly agree to that mode of disposal, but at the same time cannot help recording this note. ZAFFAR HUSSAIN MIRZA, J.‑‑I am of the view that consistent with the rule of practice and the nature of the jurisdiction vesting in this Court under Constitution vide Article 185 of the Constitution, whereby it is the constitutional duty of this Court to decide questions affecting the interpretation of the Constitution, particularly when such questions have been properly raised in this appeal, this Court should normally have determined the questions so raised. Also it has been authoritatively held that, consent of parties, or adjusting the controversy according to a consensus, cannot deter this Court from discharging its obligation to express their final opinion and set at rest any misgivings with regard to the Constitutional issues. However, since the Federal Government who had raised the aforesaid questions is not willing to proceed further for reasons not disclosed to us and the majority of my brothers on the Bench agree that no further hearing of this matter be continued, I would like to go alongwith the majority in the circumstances. I, therefore, agree that this appeal may be disposed of as done in the main order. M.B.A./F‑159/S Order accordingly.