1978 PLP 110 (SCMR)

Raja M Anwar, Deputy Attorney General for Pakistan instructed by Iftikharuddin Ahmad. Advocate‑on‑Record for the Federal Government of Pakistan. Date of hearing 11th March 1974. MUHAMMAD YAQUB ALI, J.‑This petition for Special leave to appeal arises from the order of a Division Bench of the High Court of Peshawar dated 12th December, 1973 whereby the petition filed by Malik Ghulam Jilani petitioner herein under Article 199(1) (b) (ii) of the Constitution calling upon Mr. Justice Muhammad Gul respondent to show under what authority of late he is holding the Office of the Judge of this Court was dismissed. The appointment of Mr. Justice Muhammad Gul eras challenged on the ground that he did not fulfill the requirement of Article 178 (2) of the Interim Constitution which provided as under :‑ "(2) A person shall not be appointed as a Judge of the Supreme Court unless he is a citizen of Pakistan and‑ (a) he has for a period of, or for periods aggregating, not less than five years been a Judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day) or (b) he has for a period of, or for periods aggregating, not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day)." Mr. Justice Muhammad Gul was appointed as Additional Judge of the, High Court West Pakistan at Lahore on April 20, 1965 and was confirmed. in that Office in May, 1967. On February 24, 1969 he was appointed Secretary, Ministry of Law and Parliamentary Affairs, Government of Pakistan Islamabad. He reverted to the High Court on 1‑7‑1970 and took oath the Office of the Judge of the Lahore High Court tinder President s Order VIII of 1970 which wag promulgated on the dissolution of the High Court of West Pakistan. On the same day he was reappointed as Secretary, Ministry of Law and Parliamentary Affairs, Government of Pakistan, Islamabad, while serving in that office he was on April 14, 1973 appointed as Judge of this court. Mr. Justice Muhammad Gul was thus appointed a Judge of the High Court of Pakistan more than five yeah before his elevation to this Court which fulfilled the requirement of Article 178(2) (a) but the petitioner contended that it was necessary that he should have functioned as a Judge of the High Court for five years. In his opinion mere appointment as a Judge did not achieve the object underlying Article 178(2) (a) dz., experience of functioning as a Judge for five years which would equip sufficiently a Judge of the High Court to be considered for elevation to the Supreme Curt. The phraseology of Article 178(2) (a) of the Interim Constitution does not hear out the intent attributed to it by the petitioner. The words used are the has for a period of, or for periods aggregating not leas than five years been a Judge of the High Court. If the authors of the Constitution had so intended they would have used some other words to Indicate that not only has he held the Office of a Judge but also functioned or worked as a judge. Reliance was also placed by the petitioner on the dictionary meanings of the words "has been". This too did not advance his case. No doubt the ordinary function of a Judge is to hear and decide cases brought before him in exercise of the jurisdiction vested in the Court. If do other functions could be assigned to him while holding the office of a Judge there would be some force in the contention raised by the petitioner but Article 126 of the 1962 Constitution which was in force when Mr. Justice Muhammad Gul was appointed Secretary, Ministry of Law and Parliamentary Affairs was specifically amended by Act XV of 1965 to make provision for appointment of Judge to some other Office of profit in the Service of Pakistan provided his remuneration was thereby not increased. One of the reasons for making this amendment was that on the appoint ment of a Judge of We High Court of West Pakistan to the Office of Secretary, Ministry of Law and Parliamentary Affairs, one Rao Muhammad Ashfaq, a member of the Bar moved a writ petition in the High Court seeking declaration that his Lordship's appointment as a Judge hard become unlawful. Reliance was placed on Article l26(1) (a) which prior to the amendment enjoined that a Judge of the Supreme Court or a High Court shall not hold any other Office of profit in the Service of Pakistan. The Writ Petition was dismissed by a Full Bench on the view that under Article 94 of the Constitution a Judge of the High Court shall hold Office until he attains the ago of sixty years unless he sooner resins or is removed from Office in accordance with the Constitution. As the learned Judge in that case had neither attained the age sixty year, nor resigned, nor was removed he continued to hold the Office of the Judge. After the judgment in this case was delivered Article 126(1)(a) was amended to read 'A Judge of the Supreme Court or of a High court shall not hold any other Office of profit in the Service of Pakistan of his remuneration thereby increased.' The bar that a Judge shall not hold ay other Office of profit in the Service of Pakistan was thus removed. This bar was over confined to any increase in the remuneration of a Judge who appointed so any over Office in the Service of Pakistan. The provisions of Article 126(1) (a) as amended in 1965 were incorporated in Article 209 of the Interim Constitution anti have beers reproduced in Article 207 of the 1973 Constitution. The intent oil the Constitution thus he comes manifest that a Judge of the High Cotta of the Supreme Court may be appointed to hold any other office of profit in the Service of Pakistan his remuneration is not thereby increased. Such as appointment world not result in termination of his Office as Judge specific provisions are made in the Constitution for such an eventuality. Under Article 179 of the 1673 Constitution a Judge of the Supreme Court shall hold Office until he attain the age of sixty‑five years, unless he sooner resigns or is removed from office in accordance with the Constitution. Similarly Article provides that Judge of a High Court shall hold Office until he attains the raga of sixty two years unless he sooner resigns or is removed from Office in accordance with the Constitution. As Mr. Justice Muhammad Gul had neither attained the age of sixty‑five years, roe resigned nor was he, removed from tho.0in of a Judge during the period he served as Secretary, Ministry of Law find Parliamentary Affairs, he contained to be a Judge the high Court the appointment was made with meet from April 20 1965 he was on April,14 1973 qualified to be appointed a Judge of this Court under Article 178(2)(a) of the Interim Constitution. This writ petition filed by Malik Ghulam Jilani in the High Court was thus misconceived and has been appropriately dismissed by the learned Judges in limine. Leave to appeal is refused and the petition is dismissed. Petition dismissed.