1998 PLP 122 (SCMR)

IRSHAD HASAN. KHAN, J.

This Constitutional Petition has been moved by Malik Asad Ali petitioner herein under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973. Mr. Muhammad Aslant Chishti, Senior Advocate Supreme Court, learned counsel for the petitioner states that the petitioner is citizen of Pakistan and has always struggled for preservation of democratic system, independence of judiciary, political unity, stability and integrity of Pakistan. Learned counsel emphasised that the petitioner has been greatly perturbed by on-going crisis, confrontation between different organs of the State and an atmosphere abounded by intrigue which unfortunately, for the last few months, is prevailing in the country and has brought its economy to the brink of ruination and driven the whole nation to consequences horrible to contemplate. All these events have resulted in infringement of the petitioner's fundamental rights guaranteed by the Constitution particularly the rights envisaged by Articles 2-A, 4, 9, 25, 175, 176, 177 and 180 of the Constitution, which actuated him to invoke the jurisdiction of this Honourable Court under Article 184(3) of the Constitution.

2. Mr. Muhammad Aslant Chishti further pleaded that on 20th March, 1996, in the judgment reported as PLD 1996 SC 324 in the case commonly known as 'Judges Case' which deals with the induction of Judges and their appointments against the higher posts including Chief Justice, in the superior judiciary, it has clearly been laid down that the senior most of the Judges, shall have legitimate expectancy for appointment against higher post and as Chief Justice and if he is ignored, reasons shall have to be given for the same. It is further argued that since the announcement of this judgment, the rule laid therein has been holding the field and applies to the Supreme Court as well.

3. It is stated in the petition that the independence of judiciary is closely inter-linked with the method and mode of appointment of Judges in the superior judiciary which on its turn has a strong bearing on the maintenance and preservation of public confidence in the judicial system, administration of justice and proper functioning of the Courts in the country.

4. The grievance of the petitioner is that respondent No.2 was appointed as Chief Justice of Pakistan under Notification dated 5th June, 1994 issued by respondent No.3, in pursuance of Article 177 of the Constitution. On the date of his appointment, he was not the senior most Judge in the Supreme Court and at least three learned Judges (1) Mr. Justice Saad Saood Jan, (2) Mr. Justice Ajmal Mian and (3) Mr. Justice Abdul Qadeer Chaudhry, were then senior to him who were not considered for appointment as Chief Justice muchless the giving of reasons for ignoring their names. Needless to point out that in the meanwhile Mr. Justice Saad Saood Jan and Mr. Justice Abdul Qadeer Chaudhry retired. Learned counsel for the petitioner vehemently argued that the appointment of respondent No.2 is illegal and in contravention of the law laid down in the Judges case which is applicable to the appointment made under Article 177 of the Constitution and is thus liable to be set aside. It is further 'stated in the petition:-- "The interpretation of Articles 177 and 180 of the Constitution which would have imperatively touched upon the question of validity of appointment of respondent No.2 as Chief Justice, fell for consideration before the Bench which decided the Judges' case but was left open as the same issue had been raised in the then pending other cases. It is understood that subsequently the other petitions involving the said issue were not pressed. This however, does not mean that the issue stands clinched. It has to be decided one way or the other and validity of appointment of learned respondent No.2 determined by the apex Court, which is the guardian of the Constitution. It in', further respectfully be urged that learned respondent No.2 headed the Bench which decided the Judges' case. Since his own appointment was involved in the case, the propriety demanded that he should not have sat in the Bench. "

5. Learned counsel further argued that in the matter of recent induction of five Honourable Judges in the Supreme Court, the respondent No.2, has been insisting upon compliance with the seniority rule enunciated in the Judges' case but despite not being the senior most Judge, even now, he is continuing in officer; and did not step down. The grievance of the petitioner, in nutshell, is that in view of the unconstitutionality of the appointment of respondent No.2 as Chief Justice of Pakistan the continuance and functioning of respondent No.2 as 'A Chief Justice is bound to create and, in fact, has already created far reaching complications. Learned counsel emphasised that in the Judges' case recognition has also been given to constitutional conventions: In accordance with such conventions, in Pakistan, except the departure made in case of respondent No.2, the senior most Judge of Supreme Court invariably has been appointed as Chief Justice of Pakistan. Inter alia, on these premises the Notification of appointment of respondent No.2 as Chief Justice of Pakistan, was sought to be cancelled as well as his. removal from the office of the Chief Justice of Pakistan.

6. Mr. Muhammad Aslam Chishti also highlighted the grounds for removal of respondent No.2 from his office and in addition to that has enumerated Wounds for making reference to the Supreme Judicial Council as, according to him, the said acts amount to grave misconduct and abuse of authority and power. It is not necessary to give` details of the grounds of alleged misconduct in this order, inasmuch as, the same have been stated in detail in the petition. The directions sought for in the petition read as under:-- "(a) That the appointment of respondent No.2 as Chief Justice of Pakistan is illegal, void and of no legal effect, and the Notification (Annexure "A") is liable to be cancelled. (b) That a Reference be made against respondent. No.2 to the Supreme Judicial Council under Article

209. If respondent Nb.3 does not act on the advice of the Prime Minister under Article of 48(1) or in any manner ignores the same, such reference be filed with the Supreme Judicial Council by respondent No.1 directly. (Relief at S. No.(b) is claimed as alternative, if petitioner is not found entitled to relief at (a) above). (c) That steps be taken for appointment of the Acting Chief Justice in terms of Article 180 of the Constitution, in case of grant of relief as per clause (a) above steps be taken for appointment of Chief Justice under Article

177. If respondent No.3 does not act on the advice tendered to him, in this behalf under Article 48(1) or otherwise ignores the same or fails -to take steps to administer oath of Office to such Acting Chief Justice, the notification in this regard be issued by-respondent No.1 and oath of office administered to him by any available Judge of the Supreme Court. (d) That immediately on submission of the Reference aforesaid tike Registrar and other officials of the Court entrusted with the preparation of roster and cause list shall not include the name of respondent No.2 in the Roster and no case shall be enlisted before him till the final decision by the Supreme Court Judicial Council. (e) Such other relief as deemed fit by this Hort'ble Court, in the circumstances of the case be also awarded."

7. Alognwith the Constitutional petition, the petitioner has also moved an application under Order XXXXIII, Rule 6 of Supreme Court Rules, 1980 and all other enabling powers in this behalf for grant of interim relief in the nature of following orders:-- "(a) Restraining respondent No.2 from acting as and performing the functions of a Judge of the Supreme Court as well as Claief Justice of Pakistan. (b) Suspend the operation of the notification dated 3-11-1990 and 5-6-1994 issued by respondent No.1 whereby respondent No.2 was appointed as Judge Supreme Court and Chief Justice of Pakistan, respectively. (c) Directing the Registrar of the Court and other officials entrusted with the preparation of roster and fixation of cases before Benches/Hon'ble Judges, to exclude from/not to include in the Roster the name of respondent No.2 and not to place and fix any case for hearing or other work before respondent No.2. (d) That steps be taken for appointment of the Acting Chief Justice in terms of Article 180 of the Constitution, in case of grant of relief as per clause (a) above steps be taken for appointment of Chief Justice under Article

177. If respondent No.3 does not act on the advice tendered to him in this behalf under Article 48(l) or otherwise ignores the same or fails to take steps to administer oath of office to such Acting Chief Justice, the notification in this regard be issued by respondent No. 1 and oath of office administered to him by any available Judge of the Supreme Court. "

8. The contentions raised in the petition are of paramount public importance. In the circumstances, we deem it fit and proper to admit the petition to a regular hearing. Notice to the respondents for 28-11-1997.

9. Issue notice to the learned Attorney-General for Pakistan as contemplated under Order XXVII-A, Rule 1, C.P.C., for the said date, as the matter involves interpretation of the provisions of the Constitution. As Mr. Anwarul Haq, the learned Deputy Attorney-General is present in the Court, in connection with the hearing of another case, he accepts notice on behalf of the learned Attorney-General. A copy of the Constitutional petition as well as application for interim relief has been supplied to the learned Deputy Attorney -General. He is directed to forward the same to the respondents as well as to the learned Attorney-General who in turn is directed to obtain instructions from the, respondents and appear before this Court on the said date to present the point of view/stance of the respondents.

9. Notice be also issued in the application for interim relief. Meanwhile, operation of the Notification dated 5th June, 1994 issued by respondent No.3, in pursuance of Article 177 of the Constitution, appointing respondent No.2 as Chief Justice of Pakistan is held in abeyance until further orders and subject to notice for 28-11-1997. Resultantly, respondent No.2 shall cease to perform judicial and administrative functions and powers of the Chief Justice of Pakistan till further orders subject to notice for the aforesaid date.

10. It may be pointed out that the learned Deputy Attorney-General opposed the passing of any interim relief at this stage on the ground that it would render the working of the Supreme Court to a standstill. The contention is devoid of any force. Mr. Muhammad Aslam Chishti has rightly pointed out that in view of the law laid down in the case of Mr. Zulfiqar Ali--Appellant v. The State-Respondent (PLD 1978 SC 40), the constitution and continuity of the Supreme Court would not be affected by a temporary vacancy in the Office of Chief Justice of Pakistan in consequence of interim relief granted in these proceedings.

11. Syed Sharifuddin Pirzada, Senior Advocate Supreme Court shall also assist the Court as amicus curiae on the said date.

12. In view of shortage of time, the learned Deputy Attorney-General has undertaken to inform all respondents as well as the learned amicus curiae of the orders passed by this Court and supply them with the copy of this order as well as the petition and application for interim relief. (Sd.) Irshad Hasan Khan, J. (Sd.) Khalil-ur-Rehman Khan, J. M.B.A./A-26/S Order accordingly.