1998 PLP 127 (SCMR)

Mr. M.A. Farooqi, Additional Registrar of this Court, yesterday! informed the Chief Justice that he had learnt that at Quetta Registry two honourbale Judges, namely, Mr. Justice lrshad Hasan Khan and Mr. Justice j Khalil-ur-Rehman Khan had taken cognizance of a constitutional petition filed under Article 184(3) of the Constitution by one Malik Asad Ali in which three respondents- have been impleaded including the Chief Justice as respondent No.2 and President of Pakistan as respondent No.3. Incidentally, at that time, the remaining four Judges who are sitting at Islamabad, were present in the Chamber of the Chief Justice. The Additional Registrar was asked to obtain further) information from the Quetta Registry and also copy of the order and the petition. After some time copy of the order was obtained in which interim relief had been granted directing that the notification dated 5-6-1994 of the appointment of Chief Justice of Pakistan is held in abeyance until further orders and further that he shall cease to perform judicial and administrative functions and powers of the Chief Justice of Pakistan until further orders subject to notice. In such circumstances, order was passed by the Chief Justice sending for the record of that constitutional petition for registration and hearing at the Principal Seat as is contemplated under Order XXV of the Supreme Court Rules, 1980 which provides that applications for enforcement of fundamental rights under Article 184(3) of the Constitution shall be filed and registered only at the main Registry at Islamabad. It was also directed in the said order that the orders passed by the Bench at Quetta in that petition shall be deemed not to have taken effect for the reason that the proper procedure had not been followed. Today, (27-11-1997), the matter had to be taken up for consideration in the Court before the Bench of five Judges who are available at Islamabad, but the order of the Chief Justice calling for the record of the case has not been complied with and the record has not been sent, and the Court was informed by the office that the record is in the custody of Mr. Justice Irshad Hasan Khan who has refused to send the same. The Court was jam-packed with members of the Parliament and supporters of Pakistan Muslim League (Nawaz Group) and they started raising objections to the sitting of the Chief Justice on the Bench and pointing out that there was no Supreme Court and the Bench was not properly constituted. Several Advocates, without permission, addressed the Court criticizing the constitution of the bench and behaved in a manner which was not only unruly, but also uncalled for. In any case, finally, order is passed that the orders passed by the Bench of this Court at Quetta are not to be given effect to g as the matter would be heard at the principal seat as directed earlier. The objections raised by a number of lawyers with regard to the constitution of the Bench and the request that the Chief Justice should not sit on the Bench have been taken notice of which would be decided later at the proper stage. This order is passed by majority of four to one as one of us, namely, Mr. Justice Mamoon Kazi, has not agreed to the above order. . In such circumstances the Court rose for the day. The telephonically recorded statement of Mr. Abdul Karim, Assistant Registrar, Quetta, is placed on the record: (Sd.) Sajjad Ali Shah, J. (Sd.) Muhammad Bashir Jehangiri, J. (Sd.) Ch. Muhammad Arif, J. (Sd.) Munir A. Sheikh, J. MAMOON KAZI, J.

Although, I am fully conscious that, to avert the situation arising from passing of interim order dated 26-11-1997 in C.P. No.248-Q of 1997 by two Honourbale Judges of this Court while sitting at Quetta, holding in abeyance the Notification dated 5-6-1994 of appointment of the Honourbale Chief Justice, passing of the interim order dated 27-I 1-1997, by the Hon'ble Chief Justice and my learned brothers sitting on this Bench had become necessary as otherwise, this Court could not function without a Chief Justice and all its proceedings, after passing of the said order, would have been rendered coram non judice. But in my humble opinion, this matter should have been referred to a Full Bench of this Court comprising of all its learned Judges.

2. It hardly requires to be emphasised that orders of this Court are not appealable and only review petition would be maintainable in respect thereof. Therefore, it would have been appropriate to constitute a Bench consisting of all the Honourable Judges of this Court. If orders passed by one Bench of this Court are interfered with by another Bench, which does not include all the learned Judges, the same may result in creating further division among the learned Judges. Moreover, the same may seriously erode credibility of the decisions given by the apex Court.

3. Secondly, I am unable to reconcile to the-fact that the Honourbale Chief Justice has found it fit to sit himself on this Bench. The Honourable Chief Justice should have refrained from hearing this case himself since the said order, dated 26-11-997, passed by the learned Judges at Quetta, directly concerns him.-I In my opinion, no one can be a Judge in his own cause.

4. It was mainly for the aforesaid reasons that I was unable to concur with the Honourbale Chief Justice and my other learned brothers, for which I express my regrets. (Sd.) Memoon Kazi, J. M.B.A./A-27/S Order accordingly.