1981 PLP 1227 (SCMR)

Ziaullah, Advocate Supreme Court (Siraj-ul-Haq, Senior Advocate Supreme Court also present) instructed by Muhammad Afzal Siddiqui, Advocate-on. Record for Petitioner. Nemo f :)r Respondents. Date of hearing: 7th July 1981. NASIM HASAN SHAH, J.-By this petition, review is sought of the judgment dated 25th March, 1981 of this Court whereby the appeal of the petitioner (Civil Appeal No. 39 of 1978) was dismissed. Mr. Ziaullah, on behalf of the petitioner besides attempting to re-agitate the points which were taken in the appeal and repelled and cannot be allowed to be reagitated, has also raised a new point which deserves attention. It is submitted that the Provisional Constitution Order, 1981 was promulgated on the 24th of March, 1981 and Article 17 thereof provides that a person holding office immediately before the commencement of this order as Chief Justice of Pakistan or other Judge of the Supreme Court shall not continue to hold that office if he is not given, or does not make, oath in the form set out in the Schedule before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President. The petitioner has learnt through the rational news media that the their Lordships Mr. Justice S. Anwarul Haq and Justice Fakharuddin G. Ibrahim, who were two out of the three members of the Bench of this Court which heard and disposed of petitioner's Civil Appeal No. 39 of 1978, refused to take the said oath and thus they ceased to be the Chief Justice and Judge, respectively, of this Court. The remaining third learned Judge, namely, Mr. Justice Muhammad Haleem (now Acting Chief Justice) could not announce judgment on behalf of the said Bench on the 25th of March, 1981, dismissing the said appeal of the petitioner. The argument is premised on the terms of Article 17 (1) of the Provisional Constitution Order, 1981. The said sub-article is in the following terms "A person holding office immediately before the commencement of this order as Chief Justice of Pakistan or other Judge of the Supreme Court, or Chief Justice or other Judge of a High Court, or Chairman or member of the Federal Shariat Court, shall not continue to hold that office if he is not given, or does not make, oath in the form set out in the Schedule before the expiration of such time from such commence ment as the President may determine or within such further time as may bf allowed by the President." It is clear from the foregoing that a Judge shall not continue to hold that office if he is not given, or does not make, oath before the expiration of such time as may be determined by the President. As is well known the Provisional Constitution Order was promulgated on the evening of the 24th March, 198I and the time fixed for administering the oath to the Judges of the Supreme Court was at about 1-15 p. m. of 25th March, 1981. Accordingly a Judge the Supreme Court would cease to hold office if he did not take oath as the determined time, namely, 1-15 p. m. of 25th March, 1981. Until then h continued to hold the office of a Judge and could perform his functions as a Judge of the Supreme Court. As it is nobody's case that the Judgment in A question was not delivered before 1-15 p. m. on 25th March, 1981, their was no impediment in the members of the Bench who heard the appeal of the petitioner from performing their duties on Judges including the' announcing of is reserved judgment before 1-15 p. m. on 25th March, 1981. There is thus no force in the point raised in this review petition. The overall result is that this petition must fail and is dismissed hereby. Petition dismissed.