P L D 1997 Supreme Court 84 (PLP)

SAJJAD ALI SHAH, C.J.--In order to comprehend importance of the points involved in these matters for adjudication, it is essential to record the facts in the background., On 20th March, 1996, this Court passed Short Order whereby C.P. 29/1994 and Civil Appeal 805/1995 filed by Al-Jehad Trust through Mr. Habib Al-Wahabul Khairi, were allowed after interpreting relevant Articles in the Constitution pertaining to judiciary and laying down criteria for appointment of Judges in the Supreme Court and High Courts as envisaged it the Constitution. Later, detailed reasons were released in support of the Short Order on 3-4-1996. These cases have come to be popularly known a: ' appointment of Judges case' and the main judgments and Short Order therein are reported in Al-Jehad Trust v. Federation of Pakistan and others PLD 199E SC 324.

2. Some of the salient points decided in the case of appointment of Judge! are; that 'consultation' is defined as effective, meaningful, purposive. consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. Recommendations made by the Chief Justice of the High Court and Chief Justice of Pakistan in respect of appointments of Judges in the High Court are to be accepted by the President/Executive in the absence of very sound reasons to be recorded. Acting Chief Justices are not consultees within the Constitutional scheme. Ad hoc and Acting Judges can be appointed in the Supreme Court only after sanctioned strength is exhausted. Vacancies to be filled ordinarily within 30 days and in extraordinary circumstances within 90 days. Senior most Judge in the High Court has legitimate expectancy to become Chief Justice and Additional Judges in the High Courts have legitimate expectancy to be made permanent .fudges. transfer of a Judge of the High Court without his consent and induction in the Federal Shariat Court is violative of Article

209. Ten years active practice as Advocate of the High Court is mandatory for a Member of Bar for appointment 'as a Judge in the High Court as against enrolment simpliciter. Judge of the Supreme Court may not be sent as Acting Chief Justice of the High Court. '

3. After passing of Short Order on 20-3-1996 and before the detailed reasons were released on 3-4-1996 some steps were taken towards the implementation of the judgment. On 25-3-1996, in the Full Court Meeting of Supreme Court, decision was taken not to include in the Roster Ad hoc Judges till their regularization or otherwise. On this account six Judges of this Court were affected. On 28-3-1996 two Acting Chief Justices of Lahore and Sindh High Courts respectively were recalled to work in the Supreme Court as permanent Judges. On 28-3-1996, the then Prime Minister, Mohtrama Benazir Bhutto, commented adversely upon the judgment of the Supreme Court in the appointment of Judges case, in the National Assembly and that speech was televised and published in news media. On 31-3-1996, one Acting and two Ad hoc Judges of the Supreme Court were confirmed/made permanent. After release of detailed judgments on 3-4-1996, meeting of the Committee of Chief Justices took place in Islamabad to consider ways and means to implement the judgment and it was left open to the Chief Justices of the High Courts and Federal Shariat Court to take appropriate action in that respect.

4. On 4-6-1996, two notifications were issued extending for six months terms of appointments of Mr. Justice Rana Baghwan Das of Sindh High Court and Mr. Justice Javaid. Nawaz Gandapur of Peshawar High Court in spite of the fact that the Chief Justices recommended their confirmation. On 6-6-199) meeting of the Committee of the Chief Justices took place in Lahore High Con to survey progress of implementation of judgment and consider the effect of extension of two High court judges against the recommendations of the Chief Justices. On 8-6-1996, meeting of the Committee of Chief Justices took puce Murree and with the consent of all decision was taken in consequence where Additional Judges, who were not recommended for regularisation were laid o with effect from 16-6-1996 (9 from Lahore, 5 from Sindh and 3 from Peshawer High Courts).

5. In spite of the decision taken by the Committee of the Chief Justice with regard to the laying off of Judges in the High Courts, affected Judges continued to enjoy fringe benefits connected with such posts and were not officially de-notified. News item appeared in Daily Nawa-i-Waqt, Rawalpind on 4-8-1996 that the Prime Minister would call affected Judges and ask them to resign and such Judges would be accommodated in other Government departments. Mr. Justice Shaft Muhammadi was Judge of Sindh High Court and at the relevant time was working as Judge of the Federal Shariat Court. He was not to be regularised and was laid off. He was allowed to work in the Court After hearing bail application in a criminal matter, he passed order dated 10-7-1996 in which he made adverse comments on the judgment of the Supreme Court in the appointment of Judges case, in an insolent manner. Criminal Petition No.26/1996 was filed in this Court for cancellation of bail and copy of, the detailed order was also produced. That order was published in the newspapers as well. Finally, notice of contempt of Court was issued to the learned Judge. The contempt matter is still pending, ultimately, learned Judge resigned on 1-9-1996 and his resignation was accepted by the President of Pakistan and in consequence he ceased to hold office as a Judge of Sindh High Court as also of the Federal Shariat Court. ' U. Against cite backdrop of facts and events mentioned in above paragraphs three Civil Review petition Nos.32, 33 and 34 of 1996 were filed. Two of the were filed by Federation of Pakistan through Secretary, Mainstay of Law and justice 19-5-1996 and third was filed by Governor of Punjab on 21-5-199 In these petitions review was sought of judgment of this Court in the case appointment of Judges on various grounds. On 19-5-1996, Reference was filed under Article 186 of the Constitution by the Federal Government, last page which showed that it was not signed by the President of Pakistan but was filed through Mr. Justice Muhammad Arif, Secretary, Ministry of Law, Justice a Parliamentary Affairs, and settled by Qazi Muhammad Jamil, Attorney-Gene for Pakistan and was signed by both of them apart from Advocate-on-Record On office objection, Reference was returned for signature of the Preside which was done and then it was re-filed and numbered as Reference No. l/199 One common factor was noted in Reference No.l/1996 and Review Petition Nos.32 to 34/1996 that in the Reference six questions had been asked a identical questions of the same nature differently worded were raised in Civil Review Petitions mentioned above. Review Petitions were fixed for hearing before a Full Bench of seven Judges at Lahore and on 3-7-1996 Order was passed by this Court directing Federal Ministry of Law to produce record relating to confirmation of Additional Judges of Lahore and Sindh High Courts a day before the announcement of the Short Order on 20-3-1996 in the case of appointment of Judges on the next date of hearing. On 7-7-1996 Mr. Aitzaz Ahsan, learned .Advocate Supreme Court for the petitioners, made a statement before: the Court that he had instructions to say that if the Bench was not re constituted, he would withdraw the Review Petitions. Request for re-constitution of the Bench was rejected by the Chief Justice in view of the case of Zulfikar Ali Bhutto v. The State PLD 1978 SC 125 and in the result Review Petitions were dismissed as withdrawn.

7. Constitution Petition 23/1996 was filed by Al-Jehad Trust through Mr. Habib Al-Wahabul Khairi on 21-4-1996 under Article 184(3) of the Constitution with ten prayers relating to the functioning of judiciary including that in the appointments of Judges, apart from Chief Justices of the High Court and Supreme Court, authority on behalf of the Federal Government should be exercised only by President and any other view would run counter to the independence of judiciary. Record relating to the appointments of Judges o1 superior Courts is not privileged and should be shown on demand to the citizens and lawyers on the basis of right to information. Judge of the High Court should not be appointed as Law Secretary and Chief Justice of the High Court should not be appointed as Governor. In this petition order was passed for issuance' of notice to respondents. C.P. 54/1996 with title 'Zafar Iqbal Chaudhry. Advocate, Supreme Court v. Federation of Pakistan' was filed on 26-8-1996 under Article 184(3) of the Constitution. Other respondents in this petition are: President of Pakistan, Mohtrama Benazir Bhutto, the then Prime Minister and Secretary, Ministry of Law and Justice, Government of Pakistan. Prayer in this petition. is that petitioner seeks protection and enforcement of his Fundamental Rights under Articles 4, 14 and 25 with declaration from the Court that Prime Minister has no power/authority under Article 48 of the Constitution to interfere, in any manner, in the matters of appointments of Judges of superior Courts.

8. President of Pakistan has filed Special Reference No.2 of 199( on 25-9-1996 under Article 186 of the Constitution. It is stated in the said Reference that the President as the appointing authority of the Judges of the Supreme Court and High Courts has the Constitutional duty to make suck appointments. Since it is mentioned in the Objectives Resolution watch is no only reflected in Preamble but is now substantive part of the Constitution in the shape of Article 2A, which provides that Independence of the Judiciary shall be fully secured, question has teen trained fear opinion of the Supreme Court to the effect whether or not the powers of the President to make appointments of Judges in the Supreme Court and High Courts under Articles 177 and 193 of the Constitution are subject to the provisions of Article 48(1) of the Constitution. It would be pertinent here to mention that Article 48(1) envisages that in the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister. '

9. References Nos. l and 2 of 1996 end Constitutional Petitions Nos.23 and 54 of 1996 were placed for hearing before a Bench of three Judges on 9-10-1996. It was pointed out to the Court that President of Pakistan had been pleased to appoint Mr. Shahid Hamid, Advocate, Supreme Court to represent him in all matters relating to Reference No.l of 1996. Mr. Shahid Hamid informed the Court that since in Reference No.l of 1996 same questions are raised which were raised in Review Petitions Nos.32 to 34 of 1996 and the said Review Petitions were dismissed as withdrawn, President considers this Reference to have become infructuous and therefore has dissociated himself from that Reference. Qazi Muhammad Jamil, the then Attorney-General for Pakistan, present in the Court, stated that Presidential Reference was always filed on the advice of the Prime Minister and he as the Attorney-General representing the Federal Government had no instructions to withdraw the same, hence requested for time to obtain instructions. In Reference No.2 of 1996 Mr. Shahid Hamid appeared for the President and the learned Attorney-General stated that he had no nexus with that Reference and requested for time to seek further instructions from the Federal Government. It was noticed that in C.P. No.23/1996 and C.P. No.54/1996 common point involved was interpretation of Article 48 to the effect whether advice of the Prime Minister was binding or not on the President in respect of appointments of Judges in the superior Judiciary hence notices Were issued to the learned Attorney-General for Pakistan as contemplated under Order XXVII-A, Rule f , C.P.C. and also to the respondents in loth Constitutional petitions. The Court directed that the further hearing of these matters would come up before a larger Bench and M/s. S. Sharifuddin Pirzada and S.M. Zafar, Senior Advocates Supreme Court were requested to assist the Court as amicus curiae. Hearing was adjourned to date in office.

10. Hearing of two References and two Constitutional petitions mentioned above carne up again on 20-10-1996 at Islamabad before a Bench of five Judges. In the meantime, Qazi -Muhammad Jamil had resigned and in his place Syed Iqbal Haider was appointed as Attorney-General for Pakistan. Syed Iqbal Haider appeared in Reference No. l of 1996 and Mr. Shahid Hamid appeared in Reference No.2 of 1996 and also appeared for respondent No.2 in C.P. No13 of 1996. In response to Court notice Syed lqbal Haider also appeared as Attorney-General for Pakistan and Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, was present in the Court as amicus curiae. Syed lqbal Haider produced a copy of ex post facto approval by the Cabinet to Reference No.2 of 1996 filed by the President, copy is available on the record.

11. On 21-10-1996 Mr. M. Bilal, Senior Advocate Supreme Court, present in the Court informed that since the case was of utmost importance and involved questions of interpretation of Articles of the Constitution, which have nexus with Independence of Judiciary, hence he requested that representatives of the Bar Associations be invited to assist the Court. The request was accepted and such order was passed for issue of notices to the Presidents of Supreme Court Bar Association and Bar Associations of all the four High Courts and Advocates General of Provinces to assist the Court. Notice was issued to the Pakistan Bar Council to send a representative to assist the Court.

12. On behalf of the Federal Government in Reference No. l of 1996 Raja Muhammad Bashir, learned Deputy Attorney-General filed .M.A. No.657 of 1996 with prayer for constitution of Full Court for hearing of the two References and two C.Ps. Since the prayer related to the constitution of Bench, which is the exclusive function of the Chief Justice, the application was heard in Chamber by the Chief Justice and the request was rejected vide Order dated 23-10-1996 on the ground that it was not necessary to constitute Full Court for hearing of References in view of the case-law on the subject. Hearing of the matters by Bench of five Judges resumed and made progress. On 29-10-1996 Syed lqbal Haider, Attorney-General for Pakistan, filed an application praying that compromise dated 18-12-1989 arrived at between the then President, Mr. Ghulam Ishaq Khan, and Prime Minister, Mohtrama Benazir Bhutto be placed on the record. It was ordered that application be registered, notices be issued to the petitioners in the two Constitutional petitions and respondent No. 2.

13. On 5th November, 1996, when the cases were fixed for hearing in the Court, Government of Prime Minister Mohtrama Benazir Bhutto was dismissed and National Assembly dissolved by proclamation of the President passed under Article 58(2)(b) of the Constitution. Time was sought by Mr. Abid Hasan Minto who was appearing for Federal Government and Mr. Shabbar Raza Rizvi, Additional Advocate-General Punjab, and Mr. Shah Jehan Yousafzai, Additional Advocate-General, N.-W.F.P., to seek instructions from their respective Governments. Syed Sharifuddin Pirzada, learned amicus curiae present in the Court, also supported the request for adjournment to enable the other counsel to seek further instructions and requested that proper finding should be given by the Court on the point which is in dispute. In the circumstances, hearing was adjourned to a date after two weeks.

14. On 23-11-1996_ Mr. Shahzad Jehangir, appeared in the Court as new Attorney-General for Pakistan and stated that he represented the Federal Government arid had instructions to say that' lad wanted to withdraw Reference No. I of 1996. As a consequence the Reference stood withdrawn. .

15. Syed lqbal Haider filed two applications in two C.Ps.23 and 54 of 1996, on behalf of Mohtrama Benazir Bhutto, who was impleaded as respondent No.3 in her capacity as Prime Minister of Pakistan and prayed that she be allowed to remain as respondent No.3 in her private capacity and to contest the proceedings. Prayer was allowed to that extent and Mr. Iqbal Haider was also allowed to appear for her.

16. Above narrative of facts shows that Reference No. l / 1996 stands withdrawn and Reference No.2/1996 filed by the President of Pakistan through his private counsel, Mr. Shahid Hamid, has been accorded ex post facto approval by the Cabinet as has been informed by Syed lqbal Haider, the then Attorney-General for Pakistan. In this Reference apparently now there is no objection front any quarter so far as its maintainability is concerned. One thing; is very clear in this Reference as it stands now that the President of Pakistan is represented not by Attorney-General who normally represents the Federal Government which includes both President and Prime Minister and instead of that President is represented by private counsel and there is approval by the Cabinet and copy of such ex post facto approval is brought on the record by the Attorney-General of Pakistan who, now seemingly represents only the Prime Minister. This fact in itself shows the extent of gulf of differences between President and Prime Minister who have both taken up contrary stands on the question of interpretation of Article 48(1) of the Constitution vis- -vis appointments in the Superior Judiciary on the question whether advice of the Prime Minister is binding on the President or not.

17. In the Memorandum of Reference No.2/1996 filed by the President of Pakistan it is stated that after tile judgment of 20-3-1996 in the appointment of Judges case, in the process of implementation of tile judgment, some directions have been complied with and the others have not, particularly in respect of the Judges who were not recommended for regularisation and the Chief Justice of Pakistan wrote to the President to intervene to break the deadlock. As against that the then Prime Minister took up the position that there was no deadlock and she was tile head of the Government of which the Chief Justice was a part and the Government was consulting him in spite of the fact that his own position was disputed through a petition pending before the Peshawar High Court arid steps were being taken to decide the cases of the Judges who were not recommended for regularisation. From the Memorandum of Reference No.2t f 996 relevant portion at pages 13 and f2 is reproduced as under: "The .fudges of the Supreme Court and the High Courts are holders of Constitutional office. The requirement and mandate of the Objective Resolution, which now forms a substantive part of the Constitution, is that such appointments be made in order to fully secure the independence of the judiciary. It is therefore a moot point whether the President's power to make such appointments is subject to the provisions of Article 48(1) which prescribes that in the exercise of his functions the President shall act in accordance with the advice of the Prime Minister. In this matter, the following points need consideration:

(i) the appointments to the Constitutional offices forming part of .the judicial organ of the State, would appear to be a sacred Constitutional duty and not the exercise of an executive function; (ii) the appointments of the Judges of the Supreme Court and the High Courts are to be made by the President after consultation with named Constitutional consultees. It appears prima facie that the power to make these appointments after such consultation is within the ambit and scope of Article 48(2) on the Constitution. (iii) As events since the announcement of the Supreme Court Judgment in the Al-Jehad Trust case have shown, the prime Constitutional objective of securing the independence of the judiciary requires that the President should be the effective appointing authority for Judges forming part of the Judicial organ of the State, in accordance with the judgment given in that case. " The above quote shows clearly that in respect of appointments of Judges in the superior Courts the President wants to know whether he is bound by the advice of the Prime Minister as contemplated under Article 48(1) of the Constitution or such appointments are covered by Article 48(2) in which President has been given power to act in- his discretion without advice of the Prime Minister. Article 186 of the Constitution, which relates to the advisory jurisdiction of the Supreme Court, contemplates that if at any time, the President considers that it is desirable to obtain opinion of the Supreme Court on any question of law which he considers to be of public importance, he may refer the question to the Supreme Court for consideration. Concept of advisory jurisdiction of the Supreme Court goes back and originates from section 213 of Government of India Act, 1935, under which Governor-General could send a question of law, which was of such a nature and of such public importance to the Federal Court for consideration, if it was considered by him to be expedient to do so. After partition when Pakistan came into existence, in our first 1936 Constitution provision was made for advisory jurisdiction of the Supreme court under Article 162 to enable the President. to obtain opinion from the Supreme Court of Pakistan if it appeared to him that question of law has arisen or is likely to arise, which is of such a nature and of such public importance. In our 1962 Constitution Article 59 provided that the Presented, if he considers desirable tee obtain the opinion on any question' of law which he considers of public importance he may refer the question to the Supreme Court for consideration. 'The same provision is written in 1973 Constitution. Opinion-of-the Supreme Court is just opinion with explanation on the question of law and is not of binding nature and it is up to the President or the Federal Government to act upon it or not.

18. What is question of law which President considers to , be of public importance would vary from case to case. In some cases it can be a question of law and of public importance in which Federal Government as a whole is interested to make enquiry without there being any difference of opinion between President and the Prime Minister.

19. For such a situation,, which is the normal course, it is indisputable that advisory jurisdiction of the supreme Court can be invoked by the President on the advice of the Prime Minister. With the exception of 1962 Constitution which envisaged exclusively Presidential Form of Government, our Constitution of 1956 and present Constitution of 1973, both provide for Parliamentary Form of Government with Federal Government composed of President and the Prime Minister.

20. Article 90 of our 1973 Constitution envisages that the Executive Authority of the Federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 99 provides that all Executive actions of the Federal Government shall be expressed to be-taken in the name of the President. In E exercise of powers conferred by both these Articles, the Federal Government has' made Rules of Business of 1973 under Schedule V-B, Rule 15-A(1), list is made of cases requiring orders of President on the advice of the Prime Minister. Entry No.54 specifically mentions Reference to the Supreme Court on any question of law to be filed under Article 186, which is to be done on the advice of the Prime Minister. The only difference in the Reference under consideration before us, is that initially it was filed by the President without the advice of the Prime Minister as he wanted to find out whether advice of the Prime Minister is binding upon him or not as contemplated under Article 48(l) of the Constitution in respect of the appointments of Judges in the Superior Courts. Earlier, Reference No. 1 of 1996 was -filed by the Federal Government in .the Supreme Court which was not signed by the President and when it was returned by the Office of the Supreme Court with such objection, only then it was signed by the President and re-filed. This only shows differences prevailing between the President' and Prime Minister on the question whether advice of the Prime Minister is binding upon President or not in respect of appointments of Judges in the Superior Judiciary and particularly in view of implementation of the judgment of the Supreme Court in the case of appointment of Judges. However, even in Reference No.2 of 1996 during the hearing in the Court ex post facto approval was obtained from the Cabinet and such copy was, brought on the record. So, it can be safely said that maintainability of Reference No.2 of 1996 is not open to question on any ground. Moreover, the same question of law upon which opinion of this court is being sought under advisory jurisdiction is also if pending before us in the adjudicatory jurisdiction in C.P.23/1996 and C.P.54/1996 which are being heard alongwith this Reference. Finding of this Court rendered under adjudicatory jurisdiction is binding upon all and can be considered as opinion rendered under the advisory jurisdiction as well.

21. Before we take up merits, it would be pertinent to point out that issue of maintainability of Reference No.2/1996 is finally clinched as is held in paragraph 20 (at page 15) of this judgment. Now, so far maintainability of C.P. 23/1996 and C.P.54/1996 is concerned such objection is raised by Mr. Abid Hasan Minto, who appeared for the Federal Government before Proclamation of dissolution was issued by the President. This objection was vociferously re-agitated by Syed Iqbal Haider who appeared for Mohtrama Benazir Bhutto, who contested the proceedings in her private capacity after she ceased to be the Prime Minister.

22. In C.P.23/1996 Mr. Habib AI-Wahabul Khairi, Advocate, is petitioner and in the case of appointment of Judges he was petitioner in C.P.No.29/1994 which was directly filed by him under Article 184(3) of the Constitution. In that petition he had prayed that Articles relating to the Judiciary in the Constitution may be interpreted and should be followed and acted upon to ensure and promote Independence of Judiciary. It was pointed out by him that his Fundamental Right under Article 18 of the Constitution relating to freedom of trade, business or profession has been violated as he practises law in the Courts and cannot perform his duties as a lawyer, satisfactorily if the Judiciary is not independent. He pointed out Pakistan Bar Council Act, 1973 and Rules framed thereunder and made reference to Rules 165 and 175-A to point out that it was duty of Advocates to prevent political considerations from outweighing judicial fitness in the appointments of Judges and if he showed lack of endeavour in that context he would be guilty of professional misconduct. His petition was held to be maintainable as it was being heard alongwith other matter in which common questions were involved. In C.P.29/1994 petitioner had not touched directly the question of applicability of Article 48 in respect of appointment of Judges as contemplated under Articles 177 and 193 of the Constitution but this question was impliedly there as he had prayed for interpretation of Articles relating to the Judiciary as such. Secondly, question with regard to the applicability of Article 48 in that case was taken up by Syed Sharifuddin Pirzada, Senior A.S.C., who appeared in that case as amicus curiae but was left out unattended to be decided later in some other case.

23. After the announcement of judgment in the case of appointment of Judges arising from C.P.29/1994, petitioner Mr. Habib Al-Wahabul Khairi, filed C.P.23/1996 on 21-4-1996 under Article 184(3) of the Constitution with prayer, inter alia, that advice of the Prime Minister is not binding on President in respect of appointment of Judges and record of appointments to be shown to him and strength of Judges in the Supreme Court and High Courts should be fixed by law. Federal Government filed Civil Review Petitions 32 and 33/1996 on 19-5-1996 and Civil Review Petition No.34/1996 was filed by the Governor of the Punjab on 21-5-1996, in which petitioner, Mr. Khairi, filed Miscellaneous Application No.359/1996 praying that alongwith the Review Petitions, his C.P. 23/1996 should also be heard together as subject-matter is the same, which involves interpretation of Articles relating to the Judiciary. Review Petitions were then dismissed as withdrawn. Special Reference No. l/1996 which contained same grounds as in Civil Review Petitions has been withdrawn. Special Reference No.2/1996 filed by the President contains prayer with regard to the interpretation of Article 48 vis-a-vis Articles 177 and 193 of the Constitution to find out whether advice of Prime Minister is binding on President or not in respect of appointments in Superior Judiciary. This Special Reference No.2/1996 is declared maintainable. Hence, C.P.23/1996 is also maintainable. C.P.54/1996 is filed under Article 184(3) of the Constitution by petitioner, Zafar Iqbal Chaudhry, who is an- Advocate, and contains the same prayers requiring interpretation of Article 48 whether advice of Prime Minister is binding on President or not in respect of appointments in Superior Judiciary. Therefore, for reasons stated above we hold that both these petitions are maintainable.

24. In C.P.23/1996, fled by Al-Jehad Trust, respondent No.2 is President of Pakistan, who has been represented all along by private counsel, Mr. Shahid Hamid. In this petition respondent No.3 is Mohtrama Benazir Bhutto as Prime Minister and at a later stage after she ceased to be Prime Minister, requested to be allowed to remain respondent No.3 in her private capacity and to contest the proceedings and her such request was accepted. She is represented by Syed Iqbal Haider.

25. In both petitions and Reference No.2 common point is of interpretation of Article 48 of the Constitution with emphasis to the effect whether advice of the Prime Minister as contemplated under Article 48(1) is binding on President in respect of appointments in the Superior Judiciary. Since C.P.23/1996 was filed first in point of time Mr. Habib Al-Wahabul Khairi, Advocate as petitioner, was heard first in the order of priority. In his petition there are several prayers, some of which have been repeated as they figured in his previous petition which resulted in the judgment in the case of appointment of Judges and he submitted that the prayers repeated in the present petition were not adverted to by the Court in his previous petition. In any case, in the preset petition since the main point is interpretation of Article 48 vis-a-vis appointments of Judges in the Superior Courts as contemplated under Articles 177 and 193 of the Constitution, he was asked to address the Court on the main point.

26. Mr. Khairi contended before us that our Constitution of 1973 as it stands now contemplates the Parliamentary. Form of Government but in respect of appointments of Judges of the superior Courts, advice of the Prime Minister is not binding on the President for the following reasons: Firstly, that Judiciary stands separated from Executive as provided under Article 175(3) of the Constitution means the whole judiciary and not the part to the extent of magisterial level. Secondly, in the Constitution on the subject of appointments of Judges in the superior judiciary special provisions exist with particular emphasis on Articles 177 and 193 to which general provision of Article 48(1) is not attracted, hence advice of the Prime Minister is-not binding on the. President. Thirdly, basic structure of the Constitution guarantees complete independence of judiciary. Fourthly, President of Pakistan has positive role in the Constitution to perform and is not a mere ceremonial head. 'Fifthly, citizens of Pakistan have right to see record of appointments of Judges, as right to information and secrecy in the matter of judicial appointments leads to misunderstanding, which can be avoided by making the appointments transparent. Mr. Khairi supplemented his arguments with a large number of rulings which may be adverted to at later stage when the relevant points are taken up for proper consideration.

27. Raja Muhammad Akram, Senior Advocate Supreme Court for petitioner in C.P.54/1996, contended that Article 48(1) of the Constitution is generally applicable with the exception of Three Categories. In First Category, there are cases in which President can act in his discretion. Such language is used in Article 48(6). Article 58(2)(b), Article 105(4), Article 213, Article 242(1)(1-A) and Article 243(2)(c). In the Second Category, there are Articles in which language used is such that advice under Article 48(1) becomes automatically not operative. Such Articles are: Articles 101, 92 and 93 in which there is self contained provision of advice. In the Third Category, there are provisions where President is to act without advice of the Prime Minister, on the basis of Constitutional compulsion. Article 91(5) provides that Prime Minister shall hole office during the pleasure of the President. If Prime Minister does not command confidence, can be required to have vote of confidence. Article 75 provides for assent of President on the Bills. Article 46 mentions duties of Prime Minister in relation to the President including communication of information to him. Article 56(3) enables President to address either House of the Parliament or both Houses assembled together. Under Article 243 Supreme Command of Armed Forces is vested in the President,

28. It is submitted that in respect of appointments also there are three categories and in the first category President acts in his discretion. In the second category he acts on the advice of the Prime Minister. In the third category he acts "after consultation with". Appointments of Judges in the Superior Judiciary (Articles 177 and 193) are regulated under the third category providing "after consultation with". Hence, when there are two provisions in the constitution from which cane is special and the other is general, then special will prevail. Raja Muhammad Akram also contended that in the Constitution of 1973 Article 48(3) provided that orders of the President required for their validity the countersignature of the Prime Minister. Sub-Article (3) was deleted by the Eighth Amendment Act of 1985. After that now Article 90 is to be read differently which provides that Executive Authority of Federation shall vest in the President and shall be exercised by him either directly or through officer. subordinate to him in accordance with the Constitution.

29. Mr. Shahid Hamid appearing for respondent No.2 in C.P.23/1996 and C.P.54/1996 and in Reference No.2/1996 stated that he supports fully the arguments raised on behalf of the petitioners in both the petitions. He stated that the President regretted very much that he had no choice but to file the Reference. He and the Prime Minister held different views about the judiciary and the 'role of the President. In such circumstances, ibis views were opposed and there was delay .in the implementation of the judgment of this Court. President, as head of the State, has to keep his eyes and ears open to watch the State o1 affairs. Article 50 of the Constitution provided that there shall beta Parliament consisting of two Houses to be known as the National Assembly and the Senate. This Article was amended by P.0.14 of 1985 and now envisages that there shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of President and two Houses to be known respectively as the National Assembly and the Senate.

30. Acting under Article 56(2) President sent message to the Parliament ox, 23-9-1996 on the question of national importance on the subject of rampant corruption which gave the country had reputation and is being ranked as number two corrupt country in the world by international agencies. President suggested to the Parliament that it should make law on the subject of corruption which should apply to all including himself. The then Prime Minister objected on the ground that message could be sent by the president to the House of Parliament on we advice of Prime Minister as Contemplated under Article 48(1) of the Constitution. About implementation of judgment, she took the stand that Chief Justice of Pakistan cannot ask for implementation of the judgment as the Judge can only interpret the law and the judgment can be overturned by the Parliament. She further stated to this context that she is the head of the Government of which Chief Justice of Pakistan in only a part.

31. Mr. Shahid Hamid described powers of the President in seven categories as under: (1) Articles of the Constitution under-which President can exercise powers in his dis-creations . ` (2) Articles of the Constitution in which words "in his discretion" are not there but on the reading of which it is evident that the duty imposed and/or the right conferred is to be discharged by the President independently of the advice of the Cabinet by Prime Minister or that the President has either absolute or qualified discretion in such matters; . (3) Articles of the Constitution in which President is bound by the advice ("shall" and "may"); (4) Articles in which. functions to be performed by the President are subject to Article 48(1); (5) Articles of the Constitution in which President is to exercise powers either on the advice of Prime Minister or independently provided he is satisfied or forms the opinion that Constitutional basis exists for exercise of that power; (6) Articles in terms of which President is to exercise powers and discharge his duties with specified consultees and (7) Articles according to which a Constitutional duty is inspired as a sacred trust which is to be discharged through participatory consultative -- process; in the case of Supreme Court with consultation of Chief Justice of Pakistan and in the case of High Courts in consultation with Chief Justice of the High Court, Governor and Chief Justice of Pakistan. -

32. Mr. Shahid Hamid very laboriously took us through the amendments in the 1973 Constitution from the very beginning when the President was just a nominal head without powers and for validation his signature was to be countersigned by the Prime Minister, Later amendments were brought in the Constitution in order to make the President effective and in that process Article 48 was also amended and in sub-Article (1) words "shall be binding" in respect of advice of the Prime Minister to the President were dropped. Learned counsel described in great detail the changes made by the Eighth Amendment which were intended, inter alia, to give more powers to the President to strike proper balance in the powers of the President and the Prime Minister.

33. Mr. Shahid Hamid further submitted that in India Judicial appointments are trust and in Pakistan the concept is on higher pedestal because of Islamic provisions in the .Constitution and therefore such appointments are to be treated as sacred trust in the process of which extraneous consideration is a great sin. In the circumstances, such appointments are to be made under Article 48(2) and not under Article 48(1). In the judgment of appointment of Judges case time frame of 90 days is given for making appointments and Article 190 envisages that all Executive and Judicial Authorities shall act in aid of the Supreme Court. Political element in judicial appointments can be avoided only when such appointments are made by President who is a political and is a better person to ensure stopping of political influence in the appointments.

34. Mr. Abid Hasan Minto, Advocate Supreme Court, appeared for Federal Government and raised the following contentions: Firstly, what is the basic structure of 1973 Constitution and his answer is that it is Federal in character and Parliamentary in the form. He further stated that Constitution is not a dead letter but is an organic instrument which must be interpreted as such. Secondly, issue is not as to what are the powers of the President and Prime Minister but what are the Executive powers and where do they reside. He further stated that while describing such powers in the Constitution in the terminology different words are used, such as, 'advice', 'satisfaction' and 'consultation'. Thirdly, President is not to be placed at a pedestal higher than the Prime Minister in the set-up envisaged in the -Constitution as oath taken by them is identical. If political Government errs, correction is to be made by political sovereign by the method provided in the Constitution. Fourthly, Constitutional Petitions (C.Ps.23 and 54 of 1996) are not maintainable directly in the Supreme Court as petitioners have failed to show as to what are their Fundamental Rights which have been infringed.

35. Hearing of the case was going on day-to-day basis when on the following day, i.e. 5-11-1996, news item was published in the newspapers that Federal Government of Mohtrama Benazir Bhutto was dismissed and National Assembly was dissolved by Proclamation of the President issued under Article 58(2)(b) of the Constitution and caretaker Federal Government was to be set up. In view of this development, Mr. Abid Hasan Minto requested for adjournment in order to find out whether the new caretaker Federal Government would retain him as counsel or not. In the circumstances, with the consent of all the counsel present in the Court, hearing was adjourned to a date after two weeks.

36. On the next date of hearing, Mr. Abid Hasan Minto was replaced by the new Attorney-General, Mr. Shahzad Jehangir, who appeared for the Federal Government.

37. Mr. Shahzad Jehangir contended that President is not bound by the advice of the Prime Minister under Article 48(1) in respect of appointments of Judges which are made under Articles 177 and 193 of the Constitution. In support of his contention he relied upon Eighth Amendment and submitted that executive authority now vests in the President and not in the Prime Minister as President is the Head of Executive and not the Prime Minister. Mr. Shabbar Raza Rizvi, Additional Advocate-General Punjab adopted arguments of the learned Attorney-General. Mr. M.L. Shahani, Advocate-General, Sindh, also adopted arguments of the learned Attorney-General and additionally stated that Article 48 contemplates three situations: firstly, Executive functions of the Government which are covered by sub-Article (1) where advice of the Prime Minister is binding on the President; secondly, Constitutional functions and powers of President which are covered by sub-Article (2); thirdly, political functions which are covered by sub-Article (6) providing for referendum. He further stated that appointments of Judges of the superior Courts are covered by sub-Article (2) of Article

48. His supplementary contention is that in the appointments of Judges, relevant Articles contain consultative process which exclude the concept of advice of Prime Minister to be binding on the President. Mr. Shah Jehan Yousafzai, Additional Advocate-General N.-W.F.P., also adopted arguments of the learned Attorney-General.

38. As stated above, Mohtarma Benazir Bhutto after she ceased to be Prime Minister was allowed to contest proceedings in her private capacity and was represented by Mr. S. Iqbal Haider who submitted as follows: Caretaker Government has no mandate or legitimacy as this Government is subject to the confirmation by this Court. Attorney-General has no locus standi as the members of the caretaker set-up dd not represent the will of the people. Petitions under consideration are not maintainable as no Fundamental Rights of the petitioners are infringed. Mr. Iqbal Haider contended that in the appointments of Judges of the superior Courts' advice of the Prime Minister is binding on the President. If the advice is in conflict with the judgment in the appointment of Judges case then according to that judgment reasons to be assigned by the Executive for not accepting the recommendation of the Chief Justices are justiciable. It was further submitted by him that there was already consensus agreement between the Prime Minister and President (Mohtarma Benazir Bhutto and Mr. Ghulam Ishaq Khan) which provides for harmonious relationship not only between the President and Prime Minister but also among the three pillars of the State. In support reliance was placed on Articles 90 and 99(1) of the Constitution and Rule 15-A(1) and Entries Nos.31, 32, 33, 34 and 35 of Schedule V-B and Rule 15-A(2), Schedule VI of the. Rules of Business of 1973. Lastly, Syed lqbal Haider submitted that if President is given such powers by this Court then Federal character of the Constitution will break down.

39. Agha Muhammad Dilawar Khan, President of Pakistan Insaf Party appeared as a citizen on his own request and was allowed to address the Court. He supported the case of the petitioners and submitted that before -Eighth Amendment executive authority of Federation under Article 90 of the Constitution was to be exercised by the Federal Government through the Prime Minister who was treated as Chief Executive of the Federation. After the Eighth Amendment Article 90 was modified and it now provides that Executive Authority of the Federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. He also pointed out Article 91 of the Constitution which envisages that there shall be a Cabinet of Ministers with Prime Minister as its head to aid and advise the President in the exercise of his functions. He drew the attention of the Court to Article 46 under which it is the duty of the Prime Minister to communicate to President all decisions of the Cabinet and proposals for legislation and furnish such information to him relating to the administration of affairs of the Federation and proposals for legislation as the President nay call for clause (c) of Article 46 envisages that if President so requires he can submit any matter on which decision has been taken by Prime Minister or a Minister for consideration of Cabinet, which has not been considered by the cabinet. It wag pointed out by him that under Article 58(1) advice of the Prime Minister to the President to dissolve the National Assembly is not binding because it automatically stands dissolved at expiration of 48 hours. It was submitted by him that President can file Reference and agreement of Mohtarma Benazir Bhutto with Mr. Ghulam Ishaq Khan is not valid and is violation of oath under the Constitution for which she can be disqualified.

40. Mr. Shahid Orakzai, journalist, requested the Court for hearing and he was allowed to address. It was stated by him that Reference No. 2 is not maintainable and there is no provision in the Supreme Court Rules for hearing of Reference. According to him President could not file Reference in, the Supreme Court without advice of the Prime Minister as in Article 186 there is no mention that he could do so in his discretion as is specifically mentioned in Article 48 (6) which provides for holding of referendum, which can be done by the President in his discretion or on the advice of the Prime Minister.

41. Mr. M. Akram Sheikh, President of the Supreme Court Bar Association, addressed the Court and submitted that judgment in the case of appointment of Judges announced by short order on 20-3-1996 was not implemented by the Federal Government for the following reasons: Firstly, tenure of two Additional Judges, namely, Mr Justice Rana Baghwan Das of Sindh High Court and Mr Justice Javaid Nawaz Gandapur of Peshawar High Court was extended for six months against the recommendation of the Chief Justices of the High Courts and Chief Justice of Pakistan, who were in favour of their confirmation/permanent appointment and. had opposed extension. Secondly, from the Additional Judges of the High Court not confirmed in 1994, some were recommended for appointment by the Chief Justices but they were not so appointed by the Federal Government. Thirdly, during the process of implementation of the judgment asking for resignation of Additional Judges was strategy of resistance and defiance as resignations showed that appointments were made validly. In the process of regularisation and permanent appointments of Additional Judges seniority was not given. Learned counsel further submitted that appointment of Judges have nothing to do with basic structure of the Constitution or system contemplated thereunder. Parliamentary system had become dictatorship and proper system ensures checks and balances. Appointments in judiciary is a State function. Political affiliation should be deleted from the judgment in the appointment of Judges case. Advocates have right to fight political appointment. In the scheme of appointments of Judges in Superior Judiciary as enshrined in the Constitution power does not belong to Prime Minister. .

42. Mr. Hamid Khan, Vice-Chairman of Pakistan Bar Council while addressing the Court supported the proposition that advice of the Prime Minister under Article 48(1) of the Constitution in respect of appointments of Judges in the Superior Judiciary is binding on the President. He traced the history of 1973 Constitution and amendments made there in from time to time including Eighth Amendment and submitted that changes were brought in the Constitution to strike balance between the powers of the President and the Prime Minister. He pointed out in detail provisions of Revival of Constitution Order (PO 14 of 1985) and Eighth Amendment Act (Act No.XVIII) of 1985 in order to show that in spite of such amendments character, of the Constitution giving Parliamentary Form of Government was not changed.

43. In order to appreciate question of interpretation of relevant Articles involved in these cases, it would be very essential to trace legislative history of our Constitution going back to period before the partition of the sub-continent. Before emergence of Pakistan, united India was governed by Government of India Act of 1935. Part IX of this Act relates to judicature and section 200 thereof envisages establishment and Constitution of the Federal Court and section 220 provides for Constitution of High Courts. Judges of the Federal Court and High Courts under that Act were to be appointed by the Governor General and there is no mention of consultation in the relevant provisions of appointment. Professor C.L. Anand has written a book with title 'Constitutional Law and History of Government of India of which 6th Edition in 1990 is published by Chief Justice H.N. Seth. This book contains a critical survey and in-depth commentary for understanding the legal background of the Constitution. It is stated in this book, in the commentary of section 220 of the Government of India Act, that appointments of all High Court Judges were crown appointments and they were neither Federal nor Provincial. Such appointments were in the unfettered discretion of the Crown. Ministers had nothing to do with the appointments. The chance of political influence being brought to bear in connection with the selection of Judges was thus completely excluded. At that time sub-continent of India was being ruled by the British as a colony. Hence all appointments of Judges were being made by the Crown through the Governor General.

44. Mr Sharifuddin Pirzada while tracing the history of Judiciary before Partition of India stated that until the Partition appointments Vf Judges' in the superior Courts were made on the recommendations of the chief Justices of India and the High Courts and such recommendations were accepted by the Governor and Governor-General of His Majesty. This practice was consistently followed with the exception of one or two instances. In one case, Justice Shad: Lal was the Chief Justice and made recommendations but the Governor noticed that names of Muslim Lawyers were not included. This happened in 1929 and discreetly such hint was made to Justice Shadi Lal, who sent names of two Muslim Lawyers who were Sir Muhammad Iqbal and Sir Abdul Qadir. Chief Justice opined about Sir Muhammad Iqbal that he is more a poet than a lawyer and about Sir Abdul Qadir that he is more a literate figure than a lawyer. Governor also sent his own observations and in the result Sir Abdul Qadir was appointed as Additional Judge. In such circumstances during those days Muslim Lawyers felt discriminated.

45. Another interesting incident is that Khawaja Nazir Ahmad was appointed as receiver in the litigation of S.M. Saleh and his relatives in connection with the partition of the property. Saleh became dissatisfied with the activities of the receiver and applied to have him removed. At the same time, F.I.R. was filed and the matter was being investigated as well. K.L. Gauba, a Barrister, represented Saleh in certain proceedings and sent a written complaint to the District Magistrate charging Khawja Nazir Ahmad, receiver, with a number of crimes. Finally High Court was approached for quashment of proceedings and stopping of investigation. Resultantly, High Court stopped the investigation. Appeal was taken to the Privy Council, where it was allowed and investigation was permitted to proceed. When complaint was made against Khawaja Nazir Ahmad, his name was duly recommended by the Chief Justice for elevation to the High Court and was in the drawer of Governor of Punjab. Chief Justice Sir Douglas Young was compelled to withdraw the recommendation and in consequence Mr Muhammad Munir, the then President of Income-tax Tribunal was appointed to the High Court Bench in the vacancy earmarked for Kh. Nazir Ahmad. Apart from the incidents mentioned above there was smooth sailing in the matters of appointments in the High Court and normally the recommendations of the Chief Justices were accepted.

46. After partition, in India attempt was made by Sardar Vallabhbhai Patel, Home Minister in the Centre to control the Judiciary. In the book with title "President and the Indian Constitution" by Valmiki Chaudhry, it is stated that after the Independence Act but before the issue of Memo. by the Home Minister dated 4th November, 1947, the same procedure was followed with the elimination of the recommendation to the Secretary of the State. Memo. of the Home Ministry dated 4th November, 1947 laid down the procedure under which the Chief Minister of the State acting in consultation with the Home Minister as also the Home Minister in the Centre had to be consulted in the selection of a Judge of a High Court. When this procedure was communicated to the Provincial Governments and the High Courts, Chief Justice of Madras, Sir Frederick Gentle, put forward this as one of the reasons for his resigning from his post. He was supported in his protest by. Sir Archibal Nye, the then Governor of Madras. Both the Chief Justice and the Governor were of the view that the procedure of appointment would lead to political jobbery and affect the independence of the judiciary. Lord Mountbatten took up this matter with the then Home Minister, Sardar Valabhbhai Patel but the Chief Justice of India had agreed to the new procedure. Later, the Conference of the Chief Justices representing all Provincial High Courts of the Union of India was held on 26-3-1948 in which the procedure of appointment was disapproved and it was held that power would pass into the hands of political parties who will control and dominate the Governmental machinery and, therefore, extreme caution had to be exercised in evolving correct procedure for appointment of High Court Judges.

47. In India in the famous Sapru Report there are Constitutional proposals of which paragraph 259 relates to the appointments in the Supreme Court and the High Court. In sub-clause (3) thereof recommendations are as under: "(a) The Chief Justice of India shall be appointed by the Head of the State and the other, Judges of the Supreme Court shall be appointed by the Head of the State in consultation with the Chief Justice of India. (b) The Chief Justice of a High Court shall be appointed by the Head of the State in consultation with the Head of the Unit and the Chief Justice of India. (c) Other Judges of a High Court shall be appointed by the Head of the State in consultation with the Head of the Unit, the Chief Justice of the High Court concerned and the Chief Justice of India.

48. In Paragraph 261 of the Report it is stated that in the course of appointments High Court and Government concerned would be more or less interested parties in the matter, hence intervention of the Supreme Court and the head of the State would rule cut all possibility of the exercise of political part, influences. The imposition of such conditions may at a superficial view seem w be inconsistent with the theoretical autonomy of the Provinces. Independence of the High Court and of Judiciary is of supreme importance for satisfactory working of the Constitution and nothing can be more detrimental to the well being of a Province 'or calculated to undermine public confidence than the possibility of Executive interference with the strength and independence of the highest Tribunal of the Province.

49. In paragraph 288 of the Report, it is stated that the Union will be a Democratic Federal State and the Head of that State, who will replace both the Governor-General and the Crown Representative and might be given a suitable indigenous designation, if necessary, should exercise such functions as are given to him only on the advice of his Federal Ministry; barring a very few exceptional cases, to be specifically mentioned in the Constitutional Act, where discretion is given to him to act on his own or on the advice other than of the Federal Ministry (1) for avoiding political or communal graft, or, (2) for taking the initiative in the national interest, specially in exceptional and fast moving situations, such as, exists at the present day. Under Exception (1) will fall suggestions relating to the strength of High Courts and appointment and removal of Judges of the Supreme Court and the High Courts.

50. Perusal of Sapru Report, as stated above, shows that endeavours were made suggesting making Judiciary Independent and particularly appointments of Judges free from political influence and for that reason Head of the State was involved in the process of appointments, who could be given discretion to act on his own or on the advice usher than that of the Federal Ministry These suggestions in the Sapru Report were not accepted in totality hence wren the constitution was promulgated in India Article 124 provided for establishment and Constitution of the Supreme Court envisaging that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the. High Courts in the estates as the President may deem necessary for the purpose and shall hold office until he attains age of 65 years: provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Similar provisions were made in Article 217 of the Indian Constitution catering for appointment of Judges in the High Courts with terms and conditions mentioned therein.

51. The Constitution of India envisages Sovereign Socialist Secular Democratic Republic. Article 53 provides that executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 74 provides that there shall be a Council of Ministers with the Prime Minister at the Head to aid and advise the President, who shall, in exercise of his functions act in accordance with such advice. These provisions clearly show that in the Indian Constitution President in the performance of his Executive powers has to act on the advice of the Prime Minister and this is applicable in the appointments of Judiciary as well.

52. While, on the other hand, in Pakistan we were able to make and promulgate Constitution for the first time in 1956. Before that we relied upon the provisions of Government of India- Act, 1935, which was adapted by Pakistan (Provisional Constitution) Order, 1947. Federal Court of Pakistan war setup under Federal Court of Pakistan Order, 1948. The jurisdiction of Privy Council in respect of appeals and petitions from Pakistan was abolished by tire Privy Council (Abolition of Jurisdiction) Act, 1950. Pakistan succeeded iii framing the Constitution in 1956 called as the Constitution of Islamic Republic of Pakistan, 1956. Mr. Sharifuddin Pirzada stated that when this exercise of making Constitution of 1956 was taken in hand, at that time and at the time of promulgation of the Constitution, Mr I.I. Chundrigar was the Law Minister. Ground work was done and reports on the Constitution making were considered. Mr.Sharifuddin Pirzada has stated before us that copy of Sapru Report was borrowed from him. It is understandable that detailed study might have been made on the subject because preparation and promulgation of Constitution is an extremely important task and the Constitution provides a proper system of governance.

53. In 1956 Constitution, Part IX relates to judiciary containing Articles 148 to 178, providing for setting up Supreme Court at its apex and High Courts in the Provinces. This Constitution provides that Chief Justice of Pakistan shall be appointed by the President and the other Judges shall be appointed by the President after. consultation with Chief Justice. Consultative process is provided for appointment of the Judges of the High Courts. Even at that time there was anxiety in the minds of the Constitution-makers to provide for the Independence of Judiciary. In this context, Late Mx. I.I. Chundrigar, who was then Law Minister, stated on the Floor of the Assembly (please refer Constituent Assembly of Pakistan Debates, 1956, Volume I, Part II, page 1803), relevant portion of which is reproduced as under: " ... ... ...Then the Supreme Court Judges and the High Court Judges are not removable once they are appointed, except by following the procedure prescribed therein. This would in my humble opinion, completely safeguard the independence of the Judiciary and that is a matter which will really secure the rights of the people. Sir, the independence of the Judiciary is a principle very dear to the people of this country,, who believe that they receive justice from the Courts of this country and that their rights are safe in the hands of the Judges. The impartiality of Judges is one aspect of the nature of the Judge, of which another is independence. A Judge who is not independent cannot be impartial. The provisions in the Bill are intended to ensure the independence of the Judges and to preserve it in future as it is preserved at present. We have at the outset made provisions in the Constitution which make the interpretation of the Constitution by the Supreme Court final. We cannot give greater assurances to say that justice is given in Pakistan in a real and unpolluted form ... ... ... "

54. Comparison can be made between provisions relating to the Judiciary in 1956 Constitution (Articles 148 to 178) and Indian Constitution (Articles 124 to 217) and it would appear that language is more or less same with slight variation but the 'substance is same. It can be said without fear of contradiction that the view point in both Indian Constitution and 1956 Constitution of Pakistan with regard to the powers of Judiciary and procedure for appointment of Judges therein is sate including conscious endeavour for maintenance of independent of Judiciary. In both the Constitutions, the form of Government provided it Parliamentary. Article 37 in 1956 Constitution provided that there shall be s Cabinet of Ministers with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. In the circumstances, is can be said that like in India, in our Constitution of 1956 because of Parliamentary Form of Government advice of the Cabinet of Ministers with Prime Minister at its head was a must to aid and advise the President in exercise of his functions including appointments in superior Judiciary.

55. In Pakistan 1956 Constitution was in force for a short time of two years and in 1958 martial law was promulgated and Constitution was abrogated. Till that time in the normal course, process of appointments of Judges went smoothly without interference from Prime Minister on political grounds except in one case where Mr. Suharwardi, as Prime Minister, bypassed the Chief Justice of Pakistan but when it was pointed out to. him, he made amends and rectified the situation. After promulgation of Martial Law and abrogation of the Constitution of 1956 late Field Marshall Ayub Khan minced no words and stated very frankly that Parliamentary Form of Government did not suit genius of the people of Pakistan and himself in 1962 gave Constitution to the people contemplating Presidential Form of the Government. This Constitution remained in force and on 25-s-1969 Proclamation was issued abrogating the constitution and declaring Martial Law. In the aftermath we lost East Pakistan, which declared independence and proclaimed itself as separate independent country called Bangladesh. in the remaining pan, West Pakistan, Interim Constitution of 1972 was promulgated on 21-4-1972 declaring the State of Pakistan as a Republic to be known as Islamic Republic of Pakistan. The form of Government was Presidential. Interim Constitution was operative till Permanent Constitution was promulgated on 12-4-1973 providing Parliamentary Form of Government.

56. In the original 1973 Constitution, Part VII relates to Judicature from Articles 175 to

203. So far as appointments of Judges are concerned the relevant Articles are 177 relating to the Supreme Court Judges and 193 relating to the High Court Judges. In the draft Constitution idea was mooted whether for appointment of Judge the Chief Justice .should recommend panel of three names and removal of Judges should be made through the Parliament. There was opposition during the debate and finally both ideas were dropped and Article 209 was inserted in the Constitution empowering Supreme Judicial Council to initiate proceedings in respect of removal of Judges. In the process of appointment of Judges with the exception of Chief Justice of Pakistan who is to be appointed by President without consultation, for appointment of other Judges of the Supreme Court and the High Court consultative process is provided in the Constitution. Article 48 in the original Constitution envisages that in the performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him. Since the Constitution provided for Parliamentary Form of Government Article 48 also applied to the appointments of Judges in the superior Judiciary.

57. On 5-7-1977 Martial Law was promulgated in the country and the Constitution was held in abeyance. By Presidential Order XIV of 1985 Constitution was revived. General elections were held on non-party basis. On 11-11-1985 Constitution (Eighth) Amendment Act of 1985 was passed where under several provisions of the Constitution were amended. It is stated that there was bargain and Eighth Amendment was allowed to be passed in return of lifting of Martial Law. Unfettered powers of the Prime Minister as contained in the original Constitution were circumscribed to make the role of the President more effective to strike balance between the powers of the two.

58. Amendment was made in Article 48 and the words "such advice shall be binding on President" were deleted. Proviso was added that President may require the Cabinet or the Prime Minister to reconsider such advice and shall act in accordance .with advice tendered after such reconsideration. Sub-Article (2) was amended and President has been given power to act in his discretion in respect of any matters in which he is empowered to do so in the Constitution. For the first time President was empowered to dissolve the National Assembly in his discretion and appoint a date not later than 90 days from the date of dissolution for holding of General Election to the Assembly and could appoint a caretaker Cabinet. Article 58 in the 1973 Constitution in original form enabled the President to dissolve the National Assembly only after Prime Minister has so advised. After amendment Article 58(2) in clause (a) empowered President to dissolve the National Assembly in his discretion after vote of no-confidence has been passed against the Prime Minister and under (b) President can dissolve the National Assembly in his discretion if a situation has arisen in which the Government of Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. In view of such amendments, it is being felt that President indirectly elected has become more powerful than Prime Minister who is directly elected and is considered as Head of the Executive in the Parliamentary Form of Government.

59. Now we come to brass-tacks. From the arguments and contentions raised arid advanced before us by learned counsel appearing for the parties and amicus curiae, the following pertinent points emerge categorically for consideration and adjudication: (1) What is the basic structure or complexion of the Constitution of 1973 from the point of view whether it envisages after Eighth Amendment Parliamentary Form of Government or Presidential? (2) Who is the Head of Executive after Eighth Amendment? (3)' Whether appointment of Judges in the superior Courts as envisaged in the Constitution is Executive power/action? (4) Is there conflict between general provision (Article 48) and special provisions (Article 177) and (Article 193) of the Constitution? (5) Is President bound by the advice of Prime Minister in respect of appointments of Judges? (6) What will happen, if judgment of the Supreme. Court in the case of appointment of Judges is not implemented?

60. Now so far the first point is concerned the question is as to what is the basic structure of the Constitution of 1973 and what form of Government is contemplated therein. On this point there appears consensus among the learned Advocates appearing before us that seemingly Constitution of 1973 contemplates Parliamentary Form of Government. This is so stated even by Mr. Habib Al Wahabul Khairi, who has appeared before us as petitioner and he has stated categorically that Constitution of 1973 envisages Parliamentary- Form of Government but has Islamic provisions as well. He further contended that in respect of appointments in the Superior Judiciary President is not bound by the advice of the Prime Minister as contemplated under Article 48(1) of the Constitution for which he has given his own reasons- Mr Abid Hasan Minto Advocate Supreme Court, appearing for the Federal Government at the initial stage submitted that basic structure of 1973 Constitution is Federal in character and Parliamentary in the Form. Constitution is not a dead letter but is an organic instrument, which must be interpreted as such.

61. In order to understand fully as to what is the basic structure of the Constitution of 1973, it would be pertinent to read not only the Constitution but other relevant documents, such as, Preamble, Constitution Bill, Report of the Constitution Committee, Debates and Amendments, if any, only then clear picture will emerge as to what is the basic structure of the Constitution. Preamble to the Constitution of 1973 reads as under: "Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; And whereas it is the will of the people of Pakistan to establish an order: Wherein the State shall exercise its powers and authority through the chosen representatives of the people; Wherein the principles of 'democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed; Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah; Wherein adequate provision shall be made for the minorities freely to profess and practise their religions' and develop cultures; Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form 4 Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; . Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; Wherein the independence of the judiciary shall be fully secured; Wherein the integrity of the territories of the Federation,' its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded; so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity;" Article 1 of the Constitution contemplates that Pakistan shall be Federal Republic known to be Islamic Republic of Pakistan, hereinafter referred to as Pakistan. Article 2 provides that Islam shall be the State religion of Pakistan. Part III of the Constitution refers to Federation of Pakistan and Article 41 contemplates that there shall be a President of Pakistan who shall be Head of the State and shall represent the unity of Republic. Article 48, as it originally stood in 1973 Constitution, provided that in performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him. Chapter II of the Constitution relates to Parliament composed of National Assembly and the Senate. In the Constitution itself is provided specifically that President is elected indirectly by electoral college while the Prime Minister, is elected directly by way of adult franchise and is leader of majority party in the Parliament.

62. Before 1973 Constitution, we had 1962 Constitution given to us by Field Marshall Muhammad Ayub Khan, which contemplated Presidential Form of Government. Interim Constitution of 1972 also envisaged Presidential Form of Government. . Before the promulgation of Constitution of 1973, all political parties represented in the National Assembly, took part in the deliberations and finally the Constitution was promulgated with consensus deciding upon Parliamentary Form of Government in which the question of autonomy of Provinces was also resolved. Therefore, there is no dispute about the fact that the Constitution of 1973, in its original shape, provided for Parliamentary Form of Government where Executive Authority vested in the Prime Minister and the President was just a nominal head of the State representing the unity of the Republic. Not only that but Article 48(3) required that orders of the President 'for validity were to be countersigned by the Prime Minister.

63. Now, the question arises as to what has been achieved by the insertion of Constitution (Eighth Amendment) Act, 1985, and whether it has changed the shape and basic structure of the Constitution from Parliamentary Form to Presidential. The answer to that is, no it has not. No doubt, Eighth Amendment Act, 1985, has amended a large number of Articles in the Constitution to strike balance between the powers of the President and the Prime Minister in order to give more effective role to the President. In consequence, Articles 48, 51, 56, 58, 59, 60, 75, 90, 91, 101, 105, 106, 112, 116, 130, 144, 152 and 270 were amended. Of course, this was done for the reason that Martial Law was imposed in the country in 1977 and Constitution was held in abeyance and in 1985 Constitution was revived, elections were held on non-party basis and then Constitution (Eighth Amendment) Act, 1985, was passed validating Proclamation of 5-7-1977 and all President's Orders and Ordinances, Martial Law Regulations, Martial Law Orders including Referendum Order of 1984. It can be said that Constitution (Eighth Amendment) Act, 1985, was passed and in return Marital Law was lifted.

64. Now, if all the amendments made in the Eighth Amendment are studied minutely it would appear, candidly speaking that more powers have been given to the President to provide him an effective role but Parliamentary Form of Government is retained. Article 41 in the Constitution before Eighth Amendment provided in sub-Article (1) that there shall be a President of Pakistan who shall be the Head of State and shall represent the unity of the Republic and this provision remains in the same position after the Eighth Amendment. Article 41 originally contained six sub-Articles and RCO/P.0.14 of 1985 has made two amendments. Sub-Article (3) was amended to provide that the President shall be elected by the Members of the Provincial Assemblies in addition to Members of both Houses and sub-Article (7) was added. In Article 48 before Eighth Amendment, Sub-Article (1) envisaged that in performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him. -, This sub-Article is amended with deletion of words "and such advice shall be binding on him" and proviso has been added that the President may require the Cabinet or the Prime Minister to re-consider such advice and the President shall act in accordance with advice tendered after such re-consideration. Sub-Article (3) requiring orders of President to be countersigned by the Prime Minister for validity is deleted. These amendments inserted by Eighth Amendment Act, 1985, do not show that Form of the Government in the Constitution of 1973 has been changed from Parliamentary to Presidential.

65. Second point mentioned above is as to who is Head of the Executive I after the Eighth Amendment. Chapter III in the Constitution of 1973 defines the Federal Government. Before Eighth Amendment, Article 90(1) reads that subject to the Constitution, the Executive Authority of the Federation shall be exercise in the name of the President by the Federal Government consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the Chief Executive of the Federation. After Eighth Amendment. Article 90(1) reads that the Executive Authority of the Federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Now, the question arises for consideration whether modification in the language as provided in the amended Sub-Article (1) of Article 90 after Eighth Amendment has given Executive Authority of Federation to the President instead of Prime Minister or no difference is made as the Executive Authority of the Federation is still to be exercised by the President in accordance with the Constitution which includes Article 48(1) providing that in the performance of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister. Language used in Article 90(1) after Eighth Amendment is borrowed and bodily lifted from. Article 53 of the Constitution of India, and in India there is Parliamentary Form of Government and Article 53 is read with Article 74 in their Constitution and the latter Article provides that there shall be a Council of Ministers with Prime Minister at the Head to aid and advise the resident, who shall in the exercise of his functions, act in accordance with such advice so the answer is that under Article 90(1) executive authority is to be exercised by the President in conjunction with Article 48(1) of the Constitution, which requires that President shall act in accordance with the advice of the Cabinet or the Prime Minister.

66. The third point is whether appointment of Judges is Executive power/action. This Court has already rendered authoritative judgment in the case of appointment of Judges in the superior Courts (PLD 1996 SC 324) in which all the Articles relating to judicature in the Constitution of 1973 have been interpreted to determine the scope of the word "consultation" in respect of appointments and such other allied matters. It is held as under: (i) ' The words "after consultation" employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or unfairplay. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded. by the President/Executive. (ii) If President/Executive appoints a candidate found to be unfit and unsuitable for Judgeship by the Chief Justice of Pakistan and Chief Justice of the High Court concerned, it will not be a proper exercise of power under relevant Article of the Constitution. , (iii) That the permanent vacancies occurring in the office of the Chief Justice and Judges normally should be filled in immediately by not later than 30 days but a vacancy occurring before the due date on account of death or for any other reason, should be filled in within 90 days on permanent basis. There is no doubt about the fact that appointment of a Judge as contemplated in the Constitution is an Executive action for the reason that final order is passed in the name of the President and in consequence Notification is to be issued as covered by Entries Nos.31(b) and 32 of Schedule V-B, Rule 15-A(1) of Rules of Business, 1973. 67. - The fourth point for consideration is whether there is conflict between Article 48 which is a general provision and Articles 177 and 193 which are special provisions in the Constitution providing scheme and procedure for appointment of Judges in the Superior Courts. The proposition with regard to the interpretation is that if there is conflict between general and special provisions, then special provision shall prevail.. In the case of M.D, Tahir v. federal Government and others (1989 CLC 1369,, Division Bench of Lahore High Court held that Prime Minister does not find mention in Article 193, amongst the persons after consultation with whom the President is required to appoint Judges and since this is special provision then it shall prevail over general provision contained in Article 48(I) of the Constitution which requires that President shall act in accordance with the advice of the Cabinet or the Prime Minister in the matter of appointments of Judges in the superior Courts as envisaged in Article 193 is unnecessary and not attracted. High Court dismissed writ petition of M:D. Tahir vide order dated 21-12-1988 which was authored by Mr. Justice Muhammad Afzal Lone (as he was then). In support of the provision reliance, was placed on the judgment in the case: Government of Punjab, Health Department v. Naila Begum (PLD 1987 Lahore 336) by Division Bench in Intra- Court Appeal which was allowed holding inter alia that if there is conflict between general and special provisions in the statute then special provision shall prevail over the general provision. Incidentally, the same learned Judge, Mr. Justice Muhammad Afzal Lone, was author of that judgment. After the dismissal in limine of writ petition of M.D Tahir in the High Court, Federal Government filed petition for leave to appeal in the Supreme Court on the ground that writ petition in the High Court was dismissed in limine which involved question of interpretation of Articles of the Constitution in which the Attorney-General of Pakistan was not heard as is contemplated under Order XXVII-A, .Rule 1, C.P.C. Leave was granted and finally it came up for. hearing before 11 learned Judges of this Court, who disposed of the appeal on the basis of compromise between the parties reached outside the Court. In the result paragraph 5 of the impugned order dated 21-12-1996 of Lahore High Court was excised 111 which it was mentioned that Article 48(1) being general provision will not apply to special provision of Article 193 and advice of the Prime Minister to the President is not attracted while considering the appointments of Judges of the High Court. Two learned Judges on the Bench, namely, Mr. Justice Abdul Kadir Shaikh and Mr. Justice Zaffar Hussain Mirza (as they were then) while agreeing with the conclusion recorded their separate notes in which it was observed by them that interpretation of provisions of the Constitution should be done on merits and the controversy should have been resolved instead of deciding the appeal on the basis of consent of parties.

68. Mr Justice Muhammad Afzal Lone who wrote two judgments as Judge of Lahore High Court mentioned in the preceding paragraph was elevated to the Supreme Court and was Member of the Bench which heard the case of Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473). The same point with regard to the interpretation of Article 193 in conjunction with Article 48 (1) of the Constitution carne up for consideration and the learned Judge considered the point in the light of his earlier decisions in the High Court and observed: Relevant paragraph 25 from pages 754 and 755 of the report is reproduced as under: "

25. With reference to other category of powers of the president Mr. S.M. Zafar dilated upon provisions under which the President acts in consultation with other Constitutional functionaries. Such provisions listed by him are Articles 72(1), 101, 177, 181, 193(1) and 218(1)(b). Article 72(1) relates to the making of the rules by the President its consultation with the Speaker of the National Assembly concerning the joint sitting, and communication between two Houses of the Parliament. The other Articles relate to appointments of Judges of the superior Court except Article 218(1)(b) which covers the appointment of the members of the Election Commission. In the submission of Mr.Yahya Bakhtiar 'consultation' does not exclude applicability of Article 48(1) under which the President has to act on the advice of the Cabinet or the Prime Minister, as the case may be. While in the High Court in M.D. Tahir v. Federal Government 1988 CLC 1369 in hearing a 'writ petition dismissed in limine, I had the occasion to construe Article 193(1) and did not consider the Prime Minister's advice as sine qua non for the validity of appointment of Judges of the High Court. After hearing Mr. Yahya Bakhtiar, I feel that what he asserts can be another way of looking at Article 193(1) and this matter requires serious research. "

69. In fact, there is no cavil with the proposition that if there are two provisions in the same statute and one is general and the other is special, then while interpreting the provisions the presumption would be that the general provision was not intended to interfering with the operation of the special provision. In the case of Golden Oraphies (Pvt.) Ltd. v. Director of Vigilance, Central Excise, Customs and Sales Tax 1993 SCMR 1635, the proposition mentioned above came up for consideration but it was in respect of entries in the First Schedule to the Customs Act and the controversy arose whether claim of appellants was correct that diaries manufactured by them did not fall under Heading 48.18, Pakistan Customs Tariff but were covered by the description "printed books" listed under Heading 49.01 and thus exempt from levy of sales tax. It was held by this Court that it is not possible to treat. such diaries as outside the purview of Heading 48.18 and categorised them as "printed books" classified under Heading

49. In support of the proposition that in case of conflict between general provision and special provisions in the statute special shall prevail. Raja Muhammad Akram, counsel for petitioner in C.P. No.54/1996 has cited three cases which are distinguishable. In the case of Inspector-General of Police, Punjab and others v. Mushtaq Ahmad Warraich and others PLD 1985 SC 159, while laying down criterion for determining seniority of subordinate ranks of police force, it was held that Police Act, 1861 and Rules framed thereunder being special law shall prevail over Punjab Civil Servants Act, 1974 and Punjab Civil-Servants Appointment and Conditions of Service Rules, 1974, being general law. Same view is taken in the case of Neimat Ali Goraya v. Jaffar Abbas, Inspector/Sargent Traffic 1996 SCMR

826. In the case of Mst. Imam Bibi v. Allah Ditta and others PLD 1989 SC 384, it was held by this Court that section 19-A was added by Colonization of Government Lands Punjab (Amendment) Act--III of 1951, and the controversy arose whether newly-added section 19-A was expressly extended to Bahawalpur on the wordings of adaptation law of 1926, by which the Act with certain modifications was applied to Bahawalpur or otherwise which could not have the effect of incorporating the subsequent amendments as well. It was in that context, that effect of general law on special statute was considered and it was held that notification adding section 19-A neither creates nor curtails any right.

70. Mr. Sharifuddin Pirzada while arguing the general propositions with regard to the conflict between the general and special provisions pointed out to us Special Reference No.1 / 1957 reported in PLD 1957 SC 219 under the Advisory Jurisdiction seeking opinion to resolve conflict between Articles 83 and 225 of 1956 Constitution. Article 83 empowered Governor to summon, prorogue or dissolve the Provincial Assembly which was a general provision and Article 225, special provision, provided that until a Provincial Assembly for the Province of East Pakistan was constituted, Provincial Legislative Assembly for the Province of East Bengal functioning immediately before the Constitution day shall exercise powers conferred, and perform the duties imposed upon, the Provincial Assembly of East Pakistan It was argued that an Interim Assembly having been directed to function until a Provincial Assembly under the Constitution is constituted, whether the Governor could dissolve the latter Assembly under Article

83. It was held by this Court that on the construction of Articles 83 and 225 there can be no conflict between the two because whereas the Governor has the General power to dissolve a Provincial Assembly, the exercise of that power is negated by special provision which has operation for only a limited time. Article 83 in respect of the Governor's power to dissolve is thus subject to Article 225 and there is no repugnancy between them. In the case of State v. Zia-ur-Rehman PLD 1973 SC 49 the point for consideration was that where in a statute there are both general provision as well as special provision for meeting a particular situation, then it is the special provision which must be applied to that particular case or situation instead of the general provision. In the Interim Constitution of 1972, Article 281(1) declared valid all Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders and all other Laws made as from 25-3-1969 and their, validity was made beyond question in any Court. Article 281(1) provided that all orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or-done, on or after the twenty-fifth day of March, 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done. As against that Article 295 provided that where a law (including a President's Order, a Martial Law Regulation or a Martial Law Order) is repealed or is deemed to have been repealed by, under or by virtue of this Constitution the repeal shall not except as otherwise provided in the Constitution,

(a) revive anything not in force or existing at the time at which the repeal takes effect; _ (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred 'in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; or (f) affect the continuance of any body or authority constituted by or under such law, " This Court after consideration has held as under: "It is a well-established rule of interpretation that wherein a statute there are both general provisions as well as special provisions for meeting a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of the general provisions. Applying this principle of generalia specialibus non derogant, the provisions of Article 295 will have to be applied to the repealed legislative measures and thereunder it is significant that only acts 'duly done' or things 'suffered under the law' are protected. Acts done mala fide or without jurisdiction or acts which are coram non judice would clearly not be acts 'duly done' and, therefore, the protection would not extend to such acts. In either view of the matter, therefore, the conclusion to which I have arrived is that the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or mala fide. Such an interpretation, in my view, not only gives full effect to the provisions of the Interim Constitution but also administers the will of the law-maker as far as it can be gathered from a harmonious reading of the provisions of clause (2) of Article 281 alongwith some of the other provisions of the same Constitution without departing from the well-recognised principle that the Legislature should not be imputed the intention of perpetuating or perpetrating an injustice."

71. In the context of what is stated above, it is to be seen whether really there is conflict between Article 48(1) and Articles 177 and 193 of the Constitution. Interpretation of the provisions of the Constitution is to be done in M a responsible manner and is to be done in such a way that the Constitution is construed as a whole as an organic instrument and no part of it is rendered as redundant. If Constitution of 1973 is considered as a whole then reading of the Constitution indicates that it contains Federal Character and Parliamentary Form IN of Government. In Parliamentary Form of Government Prime Minister is Head of the Executive and all Executive actions are taken in the name of the President. i Article 48(l) envisages that in the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister. This is to be read in conjunction with Articles 177 and 193 of the Constitution so far as the appointments of the Judges of the Superior Courts are concerned. It will not be correct to say that Articles 177 and 193 of the Constitution are special provisions which do not attract application of Article 48 of the Constitution, which contains the basic characteristic of Parliamentary Form of the Government to the effect that the President has to act in accordance with the advice of the Cabinet or the Prime Minister. This provision of Article 48(1) will be automatically attracted whenever the President is exercising' his functions unless the cases fall squarely under Article 48(2) of the Constitution in which it is stated that the President l shall act in his discretion in respect of any matter in respect of which he is l empowered by the Constitution to do so. So either the President has no discretion but has to act in accordance with the advice of the Cabinet or the Prime Minister as contemplated. under Article 48(l) or can act in his discretion as contemplated under Article 48(2) of the Constitution.

72. Raja Muhammad Akram, learned counsel for petitioner in C..P.54/1996 submitted that there are three categories providing for exercise of powers by the President. In the first category, the President can act in his discretion. In the second category language used is such that advice is excluded by implication. In the third category, Article 48(1) would not apply. On the subject of appointments he further mentioned three categories. In the first category President can act in his discretion. In the second category the President has to act on the advice of the Prime Minister. In the third category President has to make appointments after consultation with. According to the learned counsel appointments of Judges in the Superior Judiciary contemplated under Articles 177 and 193 fall in the third category where appointments are made by the President after consultation with. Since consultative process is provided specifically hence advice of the Prime Minister to the President as contemplated under Article 48(1) is not attracted.

73. Contention of Raja Muhammad Akram, as stated in the above paragraph, is not tenable for the reason that if advice of the Prime Minister is to be excluded because consultative process is provided in Articles 177 and 193 of the Constitution, then this rule will have to be applied to all the provisions on the subject of appointments in Judiciary, which can be called judicial structure but could be extended to the whole structure of the Constitution. The rule will be that in the appointments if the President has to consult consultees and the Prime Minister is not mentioned then the Prime Minister has no role to play. Conversely, when the President is not required to consult, he shall have to act on the advice of the Prime Minister. Both cannot go together. Applying the rule stated above to the provisions relating to judicature, it would then make very interesting reading. For example, in Article 176, which provides for the constitution of the Supreme Court is provided that so many other Judges as may be determined by the Act of Parliament or until so determined may be fixed by the President. In this provision, consultation is not mentioned hence advice of the Prime Minister is attracted. Article 177 relates to the appointments of Chief Justice of Pakistan and so far his appointment is concerned consultation is not required which means Prime Minister has role to play. In the second part of the same sub-Article (1) the President is authorised to appoint other Judges after consultation with Chief Justice. This shows that in the appointment of Chief Justice of Pakistan Prime Minister has a say but in the appointments of other Judges of the Supreme Court the Prime Minister has no say. Article 180 provides for appointment of Acting Chief Justice and because consultation is not mentioned hence Prime Minister will have a say. Article 181 relates to appointments of Acting Judges in the Supreme Court and since word consultation' is not used therefore Prime Minister will have a say. Article 182 relates to the appointments of Ad hoc Judges and here the initiative is to be taken by the Chief Justice of Pakistan. In clause (a) the consultation is not mentioned, so advice of Prime Minister will be attracted and in clause (b) consent of the Chief Justice of the High Court is mentioned, so advice of the Prime Minister will be excluded. Article 183(1) provided for permanent seat of the Supreme Court at Islamabad. Under sub-Article (2) Chief Justice of Pakistan can declare other places after approval of the President for sitting of the Supreme Court which will exclude advice of the Prime Minister but in sub-Article (3) President is empowered to declare sitting of the Supreme Court at any such place until provision is made for establishment at Islamabad, advice of the Prime Minister will be attracted. Under Article 193 for appointment of a Judge of the High Court consultation is mentioned which will exclude advice of the Prime Minister. In Article 200(1) for transfer of a Judge from one High Court to another, consultation is required, so advice of the Prime Minister will be excluded. In Articles 200(3) and 203-C 'consultation' is not mentioned hence advice of the Prime Minister will be attracted. This argument that where process of consultation is provided and Prime Minister is riot mentioned by designation then in the process -advice of the Prime Minister is not attracted;. does not sound convincing because then only two Articles 177 and 193 would exclude the advice of the Prime Minister but in all other Articles relating to the appointment of Judges, advice would be included.

74. After considering the arguments advanced for and against the proposition on the point whether for making appointments of Judges under Articles 177 and 193, which are special provisions, advice of the Prime Minister i to the President under general provision of Article 48 is attracted or not, we are of the considered opinion that there is no apparent conflict ltt Articles 48 on one side and 177 and 193 on the other side, because Articles 177 and 193 are to be read in conjunction with Article 48(1) which is omni potent provision being special characteristic of Constitution of 1973 which envisages Parliamentary] Form of Government. If the Constitution-makers. intended even after promulgation of Eighth Amendment to exclude Article 48(1) from application to Articles 177 and 193, then they could have expressly mentioned in Articles 177 and 193 that the President while performing his functions under these Articles is allowed to act in his discretion excluding advice of the Prime Minister and would be deemed to be acting under Article 48(2). For such reasons we are of the view that there is no conflict as appointments under Articles 177 and 193 of the Constitution are made in conjunction with Article 48(1) of the Constitution always attracting and applying advice of the Prime Minister to the President.

75. The fifth point is whether President is bound by the advice of the Prime Minister in respect of appointments of Judges as contemplated under Articles 177 and 193 of the Constitution. On this point, Mr. Khairi, petitioner in C.P. 23/1996, submitted that the President is not bound by the advice of the Prime Minister in respect of appointments of Judges because in such appointments Article 48(2) will be attracted which gives President discretionary powers. Here, discretionary powers will be exercised by the President by implication because these provisions of the Constitution, namely, Articles 48, 177 and 193 are to be construed in such a way that Judiciary is made Independent. There are so many provisions in the Constitution to which Article 48 does not apply for the reason that President has to act subject to his satisfaction; such Articles are: 89., 232, 235 and so on.

76. In this respect, Mr. Shahid Hamid, counsel for the President, argued that President as Head of the State has responsibility as envisaged in. the Constitution and has to keep himself fully informed and the Constitution has empowered him under Article 56 to address either House or both Houses in the Joint Sitting on matters of public importance. He had sent message to both the Houses on the question of corruption, which is rampant in the country and is a matter of great national importance and suggested that law should be made on the subject which would apply to all including himself. Learned counsel then divided the powers of the President, mentioned in the Constitution, in seven categories. In the first category are Articles of the Constitution in which President is empowered to act in his discretion. In the second category are Articles in which words "in his discretion" are not mentioned. In the third category are Articles in which President is bound by the advice ("shall" and "may"). In the fourth category are Articles in which functions are to be performed by the President subject to Article 48(1). In the fifth category are Articles under which President is to exercise powers either on the advice of Prime Minister or independently, provided he is satisfied or forms the opinion that Constitutional basis exists for such exercise of that power. In the sixth category are Articles under which President is to exercise powers and discharge his duties with specified consultees. And in the seventh category there are Articles according to which Constitutional duty is to be performed by the President which is to be treated as sacred trust. According to the learned counsel so far appointments of Judges are concerned under Article 177 and 193 of the Constitution, President has to act in his discretion impliedly which would be covered by Article 48(2) of the Constitution for the reasons that sixth and seventh categories of powers will be attracted. According to sixth category President is to consult specified consultees and the whole methodology is provided in the Constitutional scheme of appointments without mentioning Prime Minister, hence advice of the Prime Minister is excluded. Category seven would also cover the case of appointments of Judges because here the President is performing Constitutional duties and he has to see that appointments are made strictly in accordance with the procedure which is laid down in the Constitution. 77 . In furtherance of his contentions, Mr Shahid Hamid further submitted . that in the original 1973 Constitution role of the President was insignificant and was -no more than that of a robot. Eighth Amendment inserted in the Constitution in 1985 has brought about radical changes and the President has been given very meaningful and effective role to play under the Constitution and has been freed from the advice of the Prime Minister in so many cases. He has also drawn our attention to Article 90(1) to show that after Eighth Amendment Executive Authority of the Federation is vested in the President and is to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Previously, Article 90 before Eighth Amendment provided that Executive Authority of Federation was to be exercised in the name of the President by the Federal Government consisting of Prime Minister and Federal Ministers which shall act through the Prime Minister who shall be Chief Executive of the Federation. This proposition is dealt with in the preceding paragraphs of this judgment with observation that the amendment so made does not make much difference for the reason that Article 90 is to be read in conjunction with Article 48 of the Constitution and the language used in Article 90 by Eighth Amendment has been borrowed from Article 53 which is to be read in conjunction with Article 74 of the Indian Constitution. It may be mentioned here that Article 53 of the Indian Constitution in which same language is used as is now contained in Article 90 of our Constitution after Eighth Amendment and the language so used was there from the very beginning when the Constitution of India was promulgated in 1949. Indian Constitution contemplates parliamentary form of Government, so is the Constitution of this country even after the Eighth Amendment.

78. There is similarity in the provisions relating to appointments of Judges in - the Constitutions of India and Pakistan. In the case of Supreme Court Advocates-on-Record Association v. Union of India (AIR 1994 SC 268) it is held that President is obliged to act in accordance with advice of Council of Ministers circumscribed by the condition that advice given must be in accordance with Articles 124 and 217, as interpreted by the Supreme Court. Likewise, in Pakistan this Court has also in the case of appointment of Judges reported as Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) has considered in great detail all the Articles relating to the judiciary and has held that in such appointments recommendation of Chief Justice of the High Court and the Chief Justice of Pakistan are to be accepted and acted upon by the President/Executive in the absence of concrete and valid reasons to be recorded., We have interpreted the relevant provisions in the Constitution keeping in view the preamble, Article 2A, Islamic provisions in the Constitution and independence of judiciary and separation of judiciary from Executive as is contemplated under Article 175(3) of the Constitution. In the circumstances, to the performance of Constitutional duties, it is to be seen that provisions in the Constitution relating to the appointments of Judges are now to be construed in the light of the judgment which holds the field.

79. Mr. Hamid Khan, who represented Pakistan Bar Council, submitted before us that Eighth Amendment has not changed the complexion or basic character of the Constitution of 1973 which contemplates parliamentary form of Government beyond dispute or doubt. Eighth Amendment has at the most increased powers of the President to create balance between the powers of the Prime Minister and President in order to make the Constitution workable retaining the Parliamentary form of Government. He further submitted that Article 58 has been amended by the Eighth Amendment by giving power to the President to dissolve National Assembly in his discretion requiring holding of election within 90 days. In the meantime, in the sub-Article (5) of Article 48 provision is made for appointment of caretaker Cabinet. General Muhammad Zia-ul-Haq, after dissolving the National Assembly and dismissing the Government of Mr. Muhammad Khan Junejo appointed caretaker Minister without appointing the Prime Minister. This point came up for consideration in the case of Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166) end this Court held at page 215 of the report reproduced as under:-- "In this background the Constitution does not visualise a caretaker Cabinet without a Prime Minister. The absence of Prime Minister from a Caretaker Cabinet alters for the period under discussion the very character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Courts can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution. What are the legal consequences or individual acts done, or actions already taken and, suffered, we are leaving' it to be decided in individual cases, more appropriately brought before us." .

80. Mr Hamid Khan further submitted that in Parliamentary Democracy advice of Prime Minister is a must and binding even if it is not mentioned specifically. He has referred to Indian Constitution Article 74 before amendment in which it is mentioned that there shall be a Council of Ministers with the Prime Minister at the Head to aid and advice the President. In the case of Shamsher Singh v. State of Punjab and another (AIR 1974 SC 2192) it is held that the President as well as the Governor act on the aid and advice of the Council of Ministers in Executive action and is not required by the Constitution to act personally without aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion, he acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers. The appointment as well as removal of members of the subordinate judicial service is an Executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. That is why any action by any servant, of the Union or State in regard to appointment or dismissal is brought against the Union or the State and not against the President or the Governor.

81. In the case of Shamsher Singh (supra) paragraph 148 at page 2228 of the report is very pertinent and is reproduced as under:

"In the light of the scheme of the Constitution we have already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is Constitutionally secured when his Ministers arrive at such opinion, satisfaction or decision. The independence of the judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant Article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian Justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue. "

82. Mr. S.M. Zafar, learned Senior Advocate Supreme Court submitted that Eighth Amendment is passed try the National Assembly under the shadow of Martial Law and notwithstanding the fact that Members of the National Assembly were elected on non-party basis, Constitution with Eighth Amendment included has become foundation of our national legal order. Constitution of each country is according to its own aspirations Quoting from Constitutional Interpretation by Philip Babbitt at page 12, he stated that Constitutional modalities are the ways in which legal provisions are characterized as true from Constitutional point of view. He named six such modalities. Firstly, the historical (relying on the intentions of the framers and ratifiers of the Constitution), Secondly, textual (looking to the meaning of the words of the Constitution alone, as they would be interpreted by the average contemporary man on the street), thirdly, structural (inferring rules from the relationships that the Constitution mandates among the structures it sets up); fourthly doctrinal (applying rules generated by precedent), fifthly ethical (deriving rules from those moral commitments of the American ethos that are reflected to the Constitution), and sixthly, prudential (seeking to balance the costs and benefit of a particular rule). It was submitted by the learned counsel that important modality is structural argument which means inferring from relations that Constitution creates inter sc to various structures with which Constitution is concerned, Articles 177 and 193 in our Constitution of 1973 which call for interpretation pertain to judicial structure requiring interpretation which would be applied to the whole structure. In such circumstances, there is no substance in the argument that in the appointments of Judges contemplated in our Constitution, since Prime Minister is not mentioned specifically, then role is completely excluded. Learned counsel then referred to various Articles of the Constitution under the Chapter of Judicature which have been mentioned in the preceding paragraphs of this judgment and need not be repeated.

83. Taking up textual argument, Mr. Zafar stated that Article 48(l) requires advice of - Cabinet or Prime Minister in respect of functions and actions as Article 48(1) is all embracing commenting upon the judgment in the Al-Jehad Trust case, learned counsel stated that Supreme Court of Pakistan in the said judgment has provided for independence of Judiciary which is fully secured. Chief Justice of Pakistan has assumed the role to see that no wrong appointment takes place in the judiciary, With regard to the advice of Prime Minister in respect of appointments of Judges, learned counsel submitted that this role is actuated by the fact, both political and social at the relevant time and the role to be played by the President in such appointments can be helpful and controlling providing careful balancing.

84. The upshot of what is stated above is that in respect of appointments of Judges as contemplated under Articles 177 and 193 of the Constitution advice of the Cabinet or Prime Minister under Article 48(1) is attracted which is further qualified by and subject to the ratio decidendi contained in the judgment of AI- Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) in which it is held that in the appointments of Judges, opinion of the Chief Justice of Pakistan and Chief Justice of High Court as to the fitness and suitability of a candidate for' judgeship is entitled to be accepted in the absence of very sound reasons .to be recorded by the President/Executive. If President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution.

85. The last point is very thought provoking and was raised in the Court during the hearing, which into the effect as to what will happen if the judgment of the Supreme Court in the- appointment of Judges case is not implemented. Learned counsel who had appeared in these matters made different .comments. Mr. S.M. Zafar as amicus curiae stated that in such a situation President will be justified to invoke Article 58(2)(b) of the Constitution because it would amount to arising of situation in which Government of the Federation cannot be carried on in accordance with the provisions of the Constitution, Under the four corners of the Constitution Article 189 provides specifically that any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. Article 190 envisages that all executive and judicial Authority throughout Pakistan shall act in aid of the Supreme Court. Article 204 empowers the Supreme Court to punish for contempt any person who-- (a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; (b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt: (c) does anything which tends to prejudice the determination of a matter pending before the Court; or '(d) does any other thing which; by law, constitutes contempt of the Court. 86 In the case of non-implementation of the judgment it will have to be found out as to who is responsible for not implementing it. Article 190 is a mandatory provision under which there is no alternative for the Executive but has to act in aid of the Supreme Court. Person identified as responsible for non- implementation of the judgment can be punished by the Supreme Court for contempt for disobedience of its judgment. Perusal of Articles 177 and 193 and other Articles which are relevant for the subject-matter of judiciary shows that Supreme Court has to correspond with the President for appointments as he is named specifically in the relevant Articles and all Executive actions are to be taken in his name. It is expected that President shall see to it that appointments of Judges in the superior Judiciary are made in strict accordance with the V Constitutional scheme contemplated in Articles 177 and 193 of the Constitution which are to be interpreted and read in conjunction with the judgment in Al- Jehad Trust case which is authoritative adjudicatory pronouncement in respect or interpretation of Articles in the Constitution relating to the judiciary. Time frame is also provided in the judgment within which appointments are to be finalised. If there is undue delay or impasse which shows that dilatory tactics are being adopted and sincere attempt is not being made to implement the judgment then it will become the Constitutional duty of the President to see that judgment of the Supreme Court is implemented and there is no violation or non compliance of Article 190 of the Constitutional which makes it mandatory for all Executive and Judicial Authority throughout Pakistan to act in aid of the Supreme Court. If all the Executive and Judicial Authorities in Pakistan are unable to come in aid of the Supreme Court and judgment is not implemented, then such situation would be open to be construed as impasse or deadlock and would amount to very unhappy situation reflecting failure of Constitutional machinery and one would be justified to say that a situation has arisen in which the Government of Federation cannot be carried on in accordance with the provisions of the Constitution as is contemplated under Article 58(2)(b).

87. For the facts and reasons stated above two Constitutional petitions 23/1996 and 54/1996 are 'disposed of in the terms stated above. Special Reference No.2 of 1996 filed by the President of Pakistan under Article 186 of the Constitution also stands disposed of in the terms stated above. Copy of the judgment may be sent to the President of Pakistan as opinion of the Supreme Court on the question framed and sent by him as contemplated under Article 186(2) of the Constitution. (Sd.) . SAJJAD ALI SHAH, C.J. (Sd.) FAZAL ELAHI KHAN, J. RAJA AFRASIAB KHAN, J.

With utmost respect and humality, I agree with the judgment having been rendered by the honourable Chief Justice. However, in view of the importance of the questions involved, I will add a note of my own. AJMAL MIA. J.-y this common opinion, t intend to dispose of the above two Constitution Petitions and the aforesaid Special Reference. Constitution Petition o.2of 1996 has been filed lay Al-Jehad Trust through Mr. Taib-ul-'hab Al-Khairi, which ways the petitioner in the case now town as 'Judges Case' reported in PD 1996 SC 321 (Al-.Tehad Trust through Raeesul Mujahideen Habib-ui-Waahab-ul-Khairi and others v. Federation of Pakistan and others, in the said petition, the petitioner has prayed for the following reliefs:

Whereas Constitution Petition No.54 of 1996 has been filed by a practising Advocate, in which he has sought the following relief:

"In view of the above, it is most respectfully prayed that this Honourable Court may very graciously issue necessary direction for protection and enforcement of fundamental rights of the petitioner under Articles 4, 14 and 25 and pronounce that the Prime Minister of Pakistan has no power/authority under Article 48 of the Constitution of Pakistan to interfere, in any manner, in the matter of appointment of Judges of superior Courts. Any other relief to which the petitioner is found entitled may also graciously be granted." It may be observed that the President of Pakistan, in Special Reference No.2 of 1996, has sought the opinion of this Court under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, on the following question:

"Whether or not the powers of the President to make appointments to the Supreme Court and the High Courts under Articles 177 and 193 of the Constitution are subject to the provisions of Article 48(1) of the Constitution?" The memo. of the Reference has given the background which compelled the President to file the aforesaid Reference, namely, the then Prime Minister resisted the implementation of the judgment of this Court in the Judges Case (supra) in spite of best efforts on the part of the President.

2. In support of the above two Constitution Petitions, Messrs Habib-ul Wahab Al-Khairi, learned ASC and Raja Muhammad Akram. learned Sr. ASC have appeared. Whereas the President was represented in the aforementioned Reference by Mr. Shahid Hamid.

3. In response to the notices issued by the Court, Mr. Iqbal Haider had appeared as the Attorney-General and Mr. Abid Hasan Minto, learned Sr. ASC, appeared for the Federation up to 4-11-1996. However. after the dissolution of the National Assembly and the dismissal of the Government on 5-11-1996, Mr. Shahzad Jehangir had put in appearance as the Attorney-General and Mr. Abid Hasan Minto withdrew from the case on the instructions of the Caretaker Government. On an application of the former Prime Minister, Mohtarma Benazir Bhutto, she was impleaded in the above two Constitution Petitions in her personal capacity as respondent, No.3 by an order dated 23-11-1996, Mr. Iqbal Haider appeared on her behalf. Messrs Syed Sharifuddin Pirzada, S.M. Zafar, Hamid Khan, Vice President of the Pakistan Bar Council on behalf of the Pakistan Bar Council, Muhammad Akram Sheikh, President of the Supreme Court Bar Association, M.L. Shahani, Advocate-General Sindh, Mr. Shabbar Raza Rizvi, Additional Advocate-General Punjab, and Mr. Shah Jehan Yousafzai, Additional Advocate General, N.-W.F.P., appeared as amicus curiae. The learned Additional Advocates-General, Punjab and N.-W.F.P. adopted the arguments of the learned Attorney-General, Mr. Shahzad Jehangir. In addition to the above learned counsel, we had also heard one Agha Muhammad Dilawar, who claimed to be the President of Pakistan Insaf Tehrik and Mr. Shahid Orakzai.

4. The basic question before the Court is the question on which the President has sought the opinion of this Court quoted hereinabove. Before touching upon the above question, we may dispose of the preliminary objection raised by Mr. Abid Hasan Minto when he was appearing for the Federation and Mr.Iqbal Haider- as to the maintainability of the aforesaid two Constitution Petitions. The thrust of their arguments was that, in order to attract the jurisdiction under Article 184(3) of the Constitution, there are two pre conditions, namely, (i) that a question of public importance should be involved, and (ii) that such a question should be relatable to the enforcement of any of the fundamental rights conferred by Chapter 1 of Part IL. According to them, the above two petitioners failed to demonstrate that any of their fundamental rights has been violated. In furtherance of the above submission, Mr. Abid Hasan Minto has referred to the case of Haji Muhammad Saifullah Khan v. The Federation of Pakistan and others 1989 SCMR 22 and the case of Dr. Amanullah Khan and another v. Chairman, Medical Research Council and 3 others 1996 SCMR 1211. In the first case, a Bench of this Court comprising Full Court has held that invocation of jurisdiction of Supreme Court under Article 184(3) without alleging any infringement of fundamental rights is barred. Whereas in the second case, this Court declined a direct petition under Article 184(3) of the Constitution, in which the petitioner sought a prohibitory writ directing inter alia Pakistan Television Corporation from televising commercials of the cigarettes companies on the television, as the petitioner failed to demonstrate that any of his fundamental rights was violated. On the other hand, Messrs Habib-ul-Wahab Al-Khairi and Raja Muhammad Akram have vehemently contended that the aforesaid Constitution petitions are in fact in continuation of the Constitution petition in the above Judges' Case and as the same was entertained, the present Constitution petitions are also competent. Reliance was placed by them on the following cases:

(i) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Karachi 404; (ii) Government of Sindh through Chief Secretary, Karachi v. Sharaf Faridi and others PLD 1994 SC 105; (iii) S.P. Gupta case AIR 1982 SC 149; and . (iv) Supreme Court Advocates-on-Record Association v. Union of India AIR 1994 SC 268 They have also relied upon para. 18 of my opinion in the Judges' Case, which reads as follows:

"

18. At this juncture, I may point out the right to have access to justice through an independent Judiciary is a Fundamental Right as held in the case of Sharaf Faridi (supra) by Saleem Akhtar, J. In this regard, reference may be made to the following observation:

'The right of 'access to justice to all' is well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term 'due process of law' has been summarized. " The above view has been affirmed by this Court in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Menton and 16 others PLD 1993 SC 341. "

4. Mr. Muhammad Akram Sheikh, learned Sr. ASC, also supported the maintainability of the aforesaid Constitution petitions and referred to the case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and the case of Human Rights Cases 1993 SCMR 2001.

5. In Constitution Petition No.54 of 1996, only one relief has been prayed for relating to the question, as to whether Prime Minister's advice under Article 48(1) is necessary or not for the appointments of Judges of the superior Courts under Articles 177 and 193 of the Constitution. Whereas in Constitution Petition No.23 of 1996, a number of reliefs have been prayed for as is evident from the above-quoted para. from the memo. of the said petition. The same inter alia include the aforesaid question of applicability of Article 48(1). In addition to the above, inter alia under sub-para. of the afore quoted para. a declaration has been sought to the effect that the appointment of the present incumbent of the office of the Chief Justice of Pakistan cannot be challenged and that in future, the senior most Judge is entitled to be appointed has the Chief Justice.

6. I may observe that in the Constitution petition. relating to the Judges' Case, the petitioner had prayed that the then senior most Judge, Saad Saood Jan, J., who was then appointed as the Acting Chief Justice, should be appointed as the permanent Chief Justice. It may be observed that while the aforementioned Constitution petition was pending, the present incumbent of the office of the Chief Justice was appointed. The question, as to whether the senior most Judge had legitimate expectancy to be appointed as the Chief Justice in the absence of any concrete thing against him, was argued before the Bench which was hearing the Judges Case, to which I was a Member and so also the learned Chief Justice. I sought the assistance on the above question of the learned counsel who appeared in the aforesaid Constitution petition. My personal view was that since it was not directly involved, the question of appointment of the Chief Justice of Pakistan should also be decided as we were deciding the question vt appointment of the Chief Justice of the High Courts. .judges, of the Supreme -Court aid the. High Courts and other matters relating to the judicial appointments in exercise of jurisdiction under Article 184(3) of the Constitution. However, the learned Chief Justice was of the contrary view. The above question was left open for the reasons mentioned in para. 53 of my opinion in the Judges' Case.

7. The above mentioned question was again raised by the Federation in the Review Petition filed against the judgment in the Judges' Case as well as in Special Reference No. l of 1996. The above Review Petition was withdrawn by the then Government for the reason, need not be repeated here. Whereas above Special Reference was withdrawn by the Caretaker Government on 23-11-1996. Thus the above relief prayed for in para. ( 7 ) has nexus with the Judges' Case on the parity of reasoning in the latter case, and it can be urged that the said relief falls within the ambit of Article ' 184(3) of the Constitution.

8. Mr. Shahid Hamid, learned counsel for the President, submitted that since the above question remained unattended, it should be decided by the Court. I enquired from him as to whether, it would be proper on my part to sit on the Bench and to hear the above question after the retirement of Saad Saood Jan J. His reply was that nobody knew that would happen in future, but in order to remove uncertainty and doubts, the aforesaid question should also be adjudicated upon for future. He also submitted that he was instructed by the President to make commitment that in future for the appointment of Chief Justice of Supreme Court, seniority rule would be followed as held by this Court in respect of the Chief Justices of the High Courts in the Judges' Case.

9. Mr. Iqbal Haider, with the permission of this Court, has placed on record a copy of an agreement which was entered into in 1989 between the then President of Pakistan, Mr. Ghulam Ishaq Khan, and the then Prime Minister of Pakistan, Mohtarma Benazir Bhutto, inter alia containing the agreed procedure as to the appointment of the Chief Justices and Judges of the superior Courts. The method of appointment of the Chief Justice of Pakistan is provided in Item No.4, which indicates that it was agreed that the senior most Judge would be given preference and that he would be superseded only in case there was anything adverse on record against him.

10. Since while pronouncing the above order on 4-12-1996, we have decided/expressed our view only on one question, the above matter need no further discussion. The question in issue is, as to whether the advice of the Prime Minister under Article 48(1) of the Constitution is necessary for the appointment of the Judges of the superior Courts. In my view, the above question is directly linked with the Judges' Case. The above matter was agitated before the Bench in the Judges' Case. It may be pertinent to reproduce paras. 66 to 68 froth the above judgment, which read as follows:

"

66. Before parting with the above discussion, I may observe that Mr.Sharifuddin Pirzada has contended that the appointment of Judges in the superior Courts by the President is not an act of the nature which needs advice of the Prime Minister under Article 48 of the Constitution. According to him, the relevant Articles of the Constitution confer power on the President to appoint the Judges of the superior Courts after consulting the consultees mentioned in the relevant Articles; which do not include the Prime Minister. His further submission was that since the special Articles provide specifically the consultees who are to be consulted, this will negate Article 48 of the Constitution and thus the Prime Minister's advice is not required. In support of his submission, he has referred to certain cases and other material. Mr. Khairi and Mr. Raja Muhammad Akram, learned counsel for the newly added appellants Nos.3 to 7, had also submitted arguments in line with Mr. Sharifuddin Pirzada's above arguments.

67. On the other hand, Mr. Qazi Muhammad Jamil, learned Attorney General, and Mr. Aitzaz Ahsan, learned counsel for the Federation, have submitted that the appointment of a Judge in a superior Court is an executive act and the Executive includes the President and the Prime Minister. According to them, it is not necessary to go into the above question.

68. Since the interpretation of various Articles given by this Court hereinabove will be binding on the Executive, as such it is not necessary to go into the above question in this case." The above question was left open in view of the statement of the then Attorney General, Mr. Qazi Muhammad Jamil, and Mr. Eitzaz Ahsan, the learned counsel for the Federation, to the effect that the appointment of a Judge in a superior Court was an executive act and the Executive includes the President and the Prime Minister and, therefore, it was not necessary to go into the above question. I left the above question open after observing that since the interpretation of various Articles given by this Court would be binding on the executive and, as such, it was not necessary to go into the above question in that case. The scenario which emerged after the judgment in the Judges' Case was handed down, namely, the then Government resisted the implementation of the same which is also evident from the facts narrated in the memo. of Reference filed by the President. The above question has acquired importance and needs resolution.

11. I am, therefore, of the view that the above Constitution petitions are maintainable at least to the extent of deciding the above question for the reasons inter alia stated in the afore quoted para. 18 of my opinion from the Judges' Case. I may observe that some of the reliefs prayed for in Constitution Petition No.23 of 1996 were in fact also prayed for in the Judges' Case, but we refrained from dealing with the same as we were not inclined to grant the same. It is, therefore, doubtful whether the same can be repeated.

12. Before dealing with the above question, I - may take up another preliminary submission of Mr. Iqbal Haider, namely, that since the above mutual agreement entered into between the then President and the then Prime Minister contained a detailed agreed procedure as to the appointment of the Chief Justice and the Judges of the superior Courts and as a Bench of this Court comprising Full Court, on the basis of the above agreement, disposed of Civil Appeal No.486 of 1989 on 10-12-1989 through the judgment in the case of Federal Government of Pakistan through the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. M.D. Tahir, Advocate and others 1990 SCMR 189, there does not exist any doubt or dispute as to the mode of appointment of the Judges of the superior Courts and, therefore, the above Constitution petitions and the Special Reference are not warranted. In order to appreciate the above contention, it may be pertinent to point out that a Division Bench of Lahore High Court in the case of M.D. Tahir v. Federal Government and 12 others 1989 CLC 1369, while dismissing a Constitution petition in limine, held that the advice of the Prime Minister under Article 48(1) of the Constitution was not necessary for the appointment of Judges in the superior Courts for the following reasons:

"5.- As regards the absence of the advice of the Prime Minister similar argument was advanced before a Full Bench of this Court, in the case of Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah. 725 but according to the majority view interference in the matter, in exercise of discretionary powers under Article 199 of the Constitution was not called for. After hearing the petitioner we are not persuaded otherwise. In any case the Prime Minister does not find mention in, Article 193, amongst the person, 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. Bur Article 193 specifically deals with the appointments of the High Court Judges and it is well-settled, that where if, 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 iii Government of Punjab v. Naila Begum PLD 1957 Lah. 336 to which one of us (Lone, J.) was a party." The above matter was brought before this Court by the Federation in the form of above appeal, which was disposed of by consent as under:

"The learned Deputy Attorney-General on instructions from the Secretary, Ministry of Law, Justice and Provincial Coordination, 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 PLD 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 Pirzada stated that he had no objection to the disposal of the appeal in the above manner as it 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 arty 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. " It may be pertinent to mention that two of the learned Judges, namely, Abdul Kadir Shaikh and Zaffar Hussain Mirza, JJ. appended their short notes to the effect that the Court should have decided the above Constitutional question as it was the Constitutional duty of the Court to interpret the Constitution, but, at the same time, they agreed to the above consent order as the other learned Judges were agreeable to the same.

13. On the other hand, Mr. Syed Sharifuddin Pirzada, who appeared as amicus curiae, has submitted that the above consent order recorded by this Court in the case of M.D. Tahir (supra) cannot be treated as a decree or a judgment of the Court and, secondly, the above agreement was not brought on record and, therefore, cannot be referred to. To reinforce the above submission, he has cited the case of Pulavarthi Venkata Subba Rao and others, Appellants v. Valluri Jagannadha Rao (deceased) by his heirs. and legal representatives, and others, Respondents AIR 1967 SC 591 relevant at page 595 and the case of Municipal Corporation of Delhi, Appellant v. Gurnam Kaur, Respondent AIR 1989 SC 38 relevant at page

42. In the first case, it was held that a money decree passed on a compromise is not a decision of the Court and; therefore, it does not constitute res judicata as to create estoppel under section 115 of the Evidence Act, 1872. In the second case, it was concluded that a direction given by the Supreme Court of India to the Municipal Corporation to construct stalls for pavement squatters by consent is not a decision to be followed as a precedent by a High Court in a subsequent case.

14. The aforesaid mutual agreement contained a detailed procedure as to the guiding principles for exercise of Presidential Constitutional functions and the procedure as to the appointment of Judges of the High Courts, Chief Justices of the High Courts, Judges of the Supreme Court, and the Chief Justice of the Supreme Court. which reads as follows:

"Mutually Agreed Guiding Principles for exercise of President's Constitutional functions: (1) Discretion.- -The President should normally and a6 far as possible exercise his discretion after taking the Prime Minister into confidence by prior information. (2) Where word President simpliciter is used the President shall accept the advice of the Prime Minister subject to requirement for re consideration. The reconsidered advice should be tendered by the Prime Minister-normally and as far as possible accommodating the views of the President. (3) Where advice of the Prime Minister is incorporated in the Article itself then it is the advice which shall be accepted by the President without requirement of reconsideration. (4) Consultation, satisfaction, opinion, thinks fit, considers. Subject to detailed examination of the individual Articles of the Constitution, in principle decision will be based on consultations and as mutually agreed in one or more than one meetings. The Prime Minister will tender advice to the President reflecting the consensus/agreement reached which will be approved by the President accordingly. Appointment of the high Courts: (1) On his own initiative or on receipt of information from the Law and Justice Division verbal or written a panel of three names against each vacancy is forwarded by the Chief Justice of the concerned High Court to the Governor of the Province. Copy of this communication is sent to the Federal Law Secretary. (2) From the Governor the file goes to the Chief Minister of the Province. The Chief Minister through office file makes recommendations or his comments on each nominee of the Chief Justice to the Governor. (3) The Governor sends a D.O. Letter to the Federal. Law Secretary containing his opinion on each nominee in the Chief Justice's panel based on the recommendations/comments of the Chief Minister. (4) Copies of the D.O. Letters of the Provincial Chief Justice and the Governor are sent by the Federal Law Secretary to the Chief Justice of Pakistan for his comments. (5) Based on the recommendations/comments/opinions of the Provincial Chief Justice, Governor of the Province and the Chief Justice of Pakistan, the Law and Justice Division submits a summary to the Prime Minister together with recommendations of Chief Justice and Governors. The Law and Justice Minister approves the submission of the Summary. (6) On receipt of the Summary, the Prime Minister calls for report from the DI.B. and DG ISI. .. (7) After completion of the above formalities, the Prime Minister and the President hold consultations in the light of recommendations, comments, opinions and Intelligence Reports etc. (8) Based on such consultations and as agreed in one or in more than one meetings the' Prime Minister tenders advice on the Summary to the President reflecting the agreement reached which is approved accordingly. ITEM-1I APPOINTMENT OF THE CHIEF JUSTICE OF A HIGH COURT (1) Chief Justice of Pakistan sends his recommendation to the Federal Law Secretary. (2) Law and Justice Division obtains the views of the Governor of the concerned Province. Views of the Governor, based on the opinion of the Chief Minister of the Province; are communicated to the Law and Justice Division. (3) In the matter of appointment of the Chief Justice of a High Court, due weight is given to the recommendation of the Chief Justice of Pakistan. (4) Preference is given to the senior most puisne Judge of the High Court for appointment as Chief Justice. (5) The senior most Judge would be superseded only in case there is anything adverse on record against him. In that case consultation would be held between the President and the Prime Minister in order to determine the question of super session. If it is agreed that on the basis of record the super session of most senior Judge is justified then the next most senior of the Judges of High Court will be appointed Chief Justice. ITEM-III APPOINTMENT OF THE JUDGES OF THE SUPREME COURT (1) On the request of the Law and Justice Division or on his own initiative, the Chief Justice of Pakistan sends a panel to the Federal Law Secretary to fill available vacancies. (2) On the basis of the recommendations of the Chief Justice of Pakistan, a Summary (Submission authorised by the Law and Justice Minister) is submitted by the. Law and Justice Division to the Prime Minister. (3) Based on such consultations and as agreed in one or in more, than one meetings the Prime Minister tenders advice on the Summary to the President reflecting the agreement reached which is approved accordingly. (4) Following has been the consistent practice so far in the appointment of Supreme Court Judges:

(i) On recommendation of the Chief Justice of Pakistan Supreme Court Judges have been appointed from amongst the nominees of the Chief Justice of Pakistan. (iij Nominees were .fudges of the High Court. (iii) Representation of the various High Courts was kept in view. (5) Above practice would continue to be followed in future also, ITEM-IV APPOINTMENT OF THE CHIEF JUSTICE OF PAKISTAN (1) On occurrence of a vacancy of Chief Justice of Pakistan a Summary is submitted by the Law and Justice Division to the Prime Minister. Submission of the Summary is authorised by the Law and Justice Minister. (2) Preference is given to the senior most Judge of the Supreme Court for appointment as Chief Justice. The senior most Judge would be superseded only in case there is anything adverse on record against him (3) Decision in principle would be made in the light of item 2 of Mutual Arrangements."

15. Tire above-quoted ' mutually agreed guiding principles indicates that modalities for the exercise of Constitutional functions by the President and as to the appointments of the Chief Justices and the Judges of the superior Court were mutually agreed to between the then President and the then Prime Minister which was founded on participator consultative process and consensus-oriented. If the above mutually agreed agreement would have been adhered to by tree former Prime Minister, there aright not have been any occasion for rendering judgment by this Court in the Judges Case or for the President to have made the above Reference. The above document spells out a coordinated working modality based on mutual confidence and understanding between the two high functionaries of the State, which is a must for the good governance and prosperity of the country. However, we cannot hold that in view of the above agreement, it is not necessary to answer the above Reference or to adjudicate upon the above question in the aforesaid two Constitution petitions. Mr. Syed Sharifuddin Pirzada's submission that the above consent order in disposing of the above appeal by this Court in the case of Federation v. M.D. Tahir (supra) cannot be treated as a judgment, seems to be correct. Secondly, it is also true that since the above agreement was not brought even on the record of this Court in the aforesaid appeal, it cannot be contended that the above appeal was disposed of on the basis of the above agreement. Thirdly, the Court is under Constitutional duty to interpret the Constitutional provisions as held in the case of Union of India v. Sankalchand AIR 1977 SC 2328. In this view of the matter, Mr.Iqbal Haider's above submission is devoid of any force. However, it is for the President and the Prime Minister in power to consider, as to whether the above agreement can form a sound basis for carrying out their respective Constitutional functions.

16. I may now revert to the above question. (a) The learned counsel in support of the contention that the Prime Minister's advice under Article 48(1) of the Constitution is not required for the appointments of Judges of the superior Courts have inter alia contended as under:

(i) That under the original Constitution the President was only titular and practically had no functions to perform but the amendments made by the Eighth Amendment in the Constitution have brought about a balance between the powers of the President and the Prime Minister, though the Constitution remained a Parliamentary _Form; (ii) That it is-not correct to urge that under Article 48 of the Constitution, the President can act without accepting the Prime Minister's advice only in respect of those Articles which expressly confer discretion on him; (iii) That the ' appointments of Judges in the superior Courts cannot be equated with any other Constitutional appointments, but it is a Constitutional duty in . the form of a sacred trust and hence Article 48(1) of the Constitution has no application; (iv) That Article 48 of the Constitution is a general Article and whereas Articles 177 and 193 of the same are special Articles providing special procedure for the appointments of the Judges in the superior Courts and, therefore, the latter Articles shall exclude the applicability of the former Article; (v) That the conclusions recorded by this Court contained in para. 7(i), (v) and (vii) in the Judges' Case PLD 1996 SC 367 require recording of reasons by the President which cannot be done if it is held that the Prime Minister's advice is binding; (vi) That the view that the Prime Minister's advice is not required under Article 48(1) of, the Constitution is in accord with the objects of Independence and Separation of Judiciary enshrined in the Constitution; (vii) That since India has adopted the Westminster Type of Parliamentary form, Articles relating to appointment of Judges of the Indian Constitution and the case-law thereon cannot be pressed into service in Pakistan as the Westminster Type of Parliamentary form has not been accepted in Pakistan. Syed Sharifuddin Pirzada's line of argument was somewhat different. According to him, in order to eliminate any political consideration and to ensure Independence of Judiciary, the Framers of the Constitution deliberately excluded the Prime Minister from Articles 177 and 193 and, therefore, Article 48(1) has no application to the appointments of the Judges of the superior Courts. (b) The learned counsel, who canvassed at the Bar the opposite point of view broadly had urged as follows:

(i) That since Articles 177 and 193 of the Constitution have not been amended by the Eighth Amendment, they would continue to operate as they were prior to the above amendments in the Constitution; (ii) That the President can act without or against the Prime Minister's advice in respect of the Articles of the Constitution relating to the appointments of Constitutional offices which expressly confer discretion on him; (iii) That all appointments under the Constitution involve duty in the nature of sacred trust and, therefore, appointments of Judges in the superior Courts cannot be distinguished on that account; (iv) That the rule that a special provision will exclude a general provision of a statute is not attracted in the present case; (v) That since in fact the Prime Minister is the consultor for the purpose of Articles 177 and 193 of the Constitution, he or she, as the case :nay be, will record reasons in terms of para. 7(i), (v) and (vii) of the judgment in the Judges' Case; (vi) That since prior and after the enforcement of 1956 Constitution during the period of the Parliamentary Form of Government in Pakistan the appointments of the Judges in the superior Courts have been made on the basis of the Prime Minister's advice, the same cannot be deviated as a Constitutional convention has come into existence; (vii) That since even under the Rules of Business, 1973, framed under the Constitution of 1973 and as amended upto date, the appointments of the Judges of the superior Courts are required to be made on the advice of the Prime Minister, it cannot be urged that the same is not required under Article 48(1) of the Constitution; (viii) That the factum that there exists a Constitutional convention/practice since the adoption of the Parliamentary Form of Government in Pakistan to appoint Judges in the superior Courts on the basis of the Prime Minister's advice negates the contention that the Framers of 1956 or 1973 Constitutions intended to exclude the Prime Minister's advice in case of appointment of Judges in the superior Courts; (ix) That if we were to examine the question whether the Prime Minister's advice is necessary under Articles 177 and 193 thereof by pressing into service six modalities of Constitutional interpretation, it becomes evident that the same is required.

17. I may take up the above first contention mentioned in para. 16(a). In .order to appreciate what amendments have been made through the Eighth Amendment in the Constitution as to create balance between the powers of the President and the Prime Minister, it may be pertinent to refer to the English translation of the political plan announced by the then President, General M. Ziaul Haq, on 12-8-1983 at the seventh session of the Majlis-e-Shoora, relied upon by Mr. Hamid Khan, in which he has dilated upon the political history of Pakistan and the factum that a number of Constitutions had been framed since the .creation of Pakistan and the reasons for their failure. It may be instructive to reproduce the relevant portion of the above speech which runs into more than 20 printed pages, which reads as follows:

"After deliberating on this issue and after exchanging views with my colleagues I have reached the conclusion that we have three alternatives before us at the moment: One; to restore the 1973 Constitution as it is; Two; to abrogate the Constitution; frame a new Constitution and seek its endorsement by the people; and Three; to promulgate the 1973 Constitution with necessary amendments. If we were to, adopt the first alternative it would mean that the country would periodically face the same crises as it did in 1977, which meant that, on the one side, we would have a despotic Prime Minister and, on the other, a helpless and ineffective President so that the country would be at the mercy of a dictator. This would also mean that we had learnt no lesson from our past. To adopt this course, therefore, would not be in the national interest. Another important point to note is that in its pristine form the 1973 Constitution had "Islam" in it only to the extent . of its preamble while in its text it is rarely mentioned. This to my mind runs counter to the aspirations of the nation. The second alternative, too, was not, in our view, in the national interest because to adopt such a course would mean plugging the country and the nation into a situation of uncertainty and to throw Pakistan's Constitutional life back into the same position that obtained at the time of its birth. Had that been my intention I would not have kept it in abeyance for all these six years. I would have abrogated it a long time ago. So after due deliberation and consultations we have decided to adopt the third course because we consider it to be in the national interest. There are in this Constitution certain settled issues and it would be inappropriate to reopen them. Apart from this there is a consensus among all sections of the country on its restoration with certain amendments. It would not be inappropriate to point out here that this view is also shared by this House: and I and my colleagues greatly value this point. However, amendments of two kinds must be made in this Constitution as has been demanded by sensible people belonging to every school of thought. One aspect of the amendment relates to a suitable alteration that needs to be made in the respective powers of the President and Prime Minister: and the other to bring the Constitution in harmony with the Islamic principles. I shall perhaps not be able to go into the details of the amendments contemplated, but in deference to the principle of consultation I will definitely seek your advice as well as the advice of the people. I deem it necessary to identify the main points of the amendments contemplated. In the first place the Objectives Resolution which has been included in the preamble of the Constitution should find its place in the main text. Secondly, the guiding principles that have been framed for us must necessarily be incorporated in the Constitution in some form or the other. We believe that these guiding principles, in their original form, must form part of the Constitution. These are the barest minimum amendments that must be made in the 1973 Constitution so that apart from reflecting the Islamic aspirations of the people it may protect the country from future crises. After a dispassionate consideration of all these matters we have taken certain basic decisions, which are:

(1) The 1973 Constitution be restored but a balance be brought about between the powers of the President and the Prime Minister and the Constitution harmonised with Islamic principles. In adopting these amendments due consideration will be given, apart from other proposals, to the opinion of the Members of the Majlis-e-Shoora and the recommendations of the Ansari Commission. (2) There has been a lot of controversy with regard to the role of the Armed Forces. I would like to end this controversy too. The Armed Forces will have no new Constitutional role, the present accepted position in this matter will be maintained. (3) Elections will be held on the basis of adult suffrage. (4) The Prime Minister will be appointed by the President. But the person appointed must in the president s view command majority support in the National Assembly. The Prime Minister, within two months of assumption of office, will be required to obtain a vote of confidence from the National Assembly (5) When the President feels that a need has arisen for seeking a fresh mandate for the electorate, he can dissolve the National Assembly. But in such an event fresh elections will have to be held within 75 days. (6) . The President will have the powers to return for reconsideration to the Assembly and the House a bill which has already been passed. (7) The President will be the Supreme Commander of the Armed Forces. He will appoint the Chairman of the Joint Chiefs of Staff Committee and the Chiefs of Staff of the three armed services and determine the terms and conditions of their appointments. (8) The appointment of the Chief Election Commissioner and members of the Commission will also be made by the President in consultation with the Chief Justice of Pakistan. (9) The Provincial Governors will also be appointed by the President. (10) Additionally, a National Security Council will be established. The Government of the day will not be able to declare an emergency without the advice of the Council. The composition and duties of the National Security Council be announced later. (11) In order to improve the economic conditions of the country the private sector will be encouraged and protected."

18. The above-quoted extract from the above speech indicates that the then President, General M. Ziaul Haq, wanted to make minimum amendments on certain matters including in respect of certain appointments. After the above disclosure of the political plan by the then President, the elections for National Assembly and Provincial Assembles were held on 25-2-1985 and 28-2-1985 respectively. After few days from the above elections. Revival of the Constitution of 1973 Order, 1985 (President's Order No, 14 of 1985), hereinafter referred to as the R.C.O., was issued and gazetted on 2-3-1985 containing a number of amendments in the 1973 Constitution. Mr. Muhammad Khan Junejo was appointed as the Prime Minister of Pakistan by the then President-i,, terms of amended clause (2) of Article 90 of the constitution. He formed a political party in the National Assembly. The R.C.CJ, was placed before the National Assembly for adopting the same. However, it seems, that there was a bargain between the then President and the party in power inasmuch as a number of amendments in the Constitution incorporated by the R.C.O. were dropped/modified and the R.C.O. in tire, amended form was unacted as Constitution (Eighth Amendment) Act, 1985 (Act XVIII of 1985) gazetted or, 1 i-11-1985, hereinafter referred to as the Eighth Amendment. The Martial Law was lifted on 31-12-1985. In other words, the Eighth Amendment facilitated the lifting of the Martial Law within six or seven weeks from the date of its enactment. In my view, it is not necessary to refer to all the amendment . I intend to refer only those amendments which have some bearing on the controversy in issue. The above relevant amendments are as follows:

(i) The original Article 46 reads as follows:

"Original Article 46.--The Prime Minister shall keep the President informed on matters of internal and foreign policy and on all legislative proposals the Federal Government intends to bring before Parliament." The R.C.O. substituted the same, which was adopted through the Eighth Amendment without any modification. The above substituted Article 46 provides as under:

. "R.C.O.. Article 46.--It shall be the duty of the Prime Minister-- (a) to communicate to the President all decisions of the Cabinet relating to the administration of the affairs of the Federation and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the Federation and proposals for legislation as the President may call for; and (c) if the President so requires, to submit for the consideration of the Cabinet any matter on which a decision has been taken by the Prime Minister or a Minister but which has not been considered by the Cabinet." (ii) Original Article 48 reads as under:-- . "Original Article 48.--(1) In the performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him. (2) The question whether any, and if so what, advice was tendered to the President by the Prime Minister shall not be inquired into in any Court. (3) Save as otherwise provided in any rules made under Article 99, the orders of the President shall require for their validity the counter signature of the Prime Minister." . The above Article was substituted by the R.C.O. as follows:-- "R.C.O. Article 48.--(1) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet, the Prime Minister, or appropriate Minister: Provided that the President may require the Cabinet to reconsider or consider such advice, as the case may be, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration or consideration. (2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so. (3) If any question arises whether any matter is or is not a matter in respect of which the President is by the Constitution empowered to act in his discretion, the decision of the President in his discretion shall be final, and the validity of anything done by the President shall not be called in question on the ground that he ought or ought not to have acted in his discretion. (4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any Court, tribunal or other authority. (5) Where the President dissolves the National Assembly, he shall, in his discretion,

(a) appoint a date, not later than one hundred days from the date of the dissolution, for the holding of a general election to the Assembly; and (b) appoint a Caretaker Cabinet. (6) If, at any time, the President, in his discretion, or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either by "Yes" or "No". (7) An Act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum. " The above Article was modified by the Eighth Amendment inasmuch as above clause (3) was omitted. (iii) Original Article 50 of the Constitution reads as follows:

"Original Article 50.--There shall be a Parliament consisting of two Houses to be known as the National Assembly and the Senate. " The same was substituted by the R.C.O. as under:-- "R.C.O. Article 50.--There shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of the President and two Houses to/be known respectively as the National Assembly and the Senate. " The same was adopted by the Eighth Amendment: (iv) Original Article 56 provided as follows:-- " original Article 56.--The President may address either House or both Houses assembled together and may for that purpose require the attendance of the members." The same was substituted by the R.C.O. as under:-- "R.C.O., Article 56.--(1) The President may address either House or both Houses assembled together and may for that purpose require the attendance of the members. (2) The President may send massages to either House, whether with respect to a Bill then pending in the Majlis-e-Shoora (Parliament) or otherwise, and a House to which any message is so sent shall with all convenient despatch consider any matter required by the message to be taken into consideration. (3) At the commencement of each session of the Majlis-e-Shoora (Parliament), the President shall address both Houses assembled together and inform the Majlis-e-shoora (Parliament) of the causes of its summons. (4) Provision shall be made in the rules for regulating the procedure of a House and the conduct of its business for the allotment of time for discussion of the matter referred to in the address of the President. " The Eighth Amendment adopted the same with modification that in clause (3) the words, "after each general election" were added. (v) Original Article ~t3 reads as follows:-- "Original Article 58.--The President shall dissolve the National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved, at the expiration of forty-eight hours after the Prime Minister has so advised. Explanation.- -Reference in this Article to 'Prime Minister' shall not be construed to include reference to a Prime Minister against whom a resolution for a vote of no-confidence has been moved in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly or a Federal Minister performing the functions of Prime Minister under clause (1) or clause (3) of Article 95." The same was substituted by the R.C.O. as under:

"R.C.O., Article 58.--(1) The President shall dissolve the- National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Prime Minister has so advised. Explanation.--Reference in this Article to "Prime Minister" shall not be construed to include reference to a Prime Minister against whom a resolution for a vote of no-confidence has been moved in the National Assembly but has not beets voted upon or against whom such a resolution has 'been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly (2) The President may also dissolve the National Assembly in his discretion where, in his opinion, - an appeal to the electorate is necessary." The Eighth Amendment re-substituted the above Article by providing as under:-- . "58.--(1) The President shall dissolve the National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Prime Minister has so advised. Explanation.--Reference in this Article to 'Prime Minister' shall not be construed to include reference; to a Prime Minister against whom a (notice of a resolution for a vote of no-confidence has been given) in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly. (2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,-- (a) a vote of no-confidence having been passed against the Prime Minister, no other member of the National Assembly is likely to command the confidence of the majority of the members of the National Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose; or (b) a situation has arisen in which the Government of the Federation cannot be carried onP accordance with the provisions of the Constitution and an appeal to the electorate is necessary.." (vi) The original Article 75 reads as follows:-- "Original Article 75.--(1) The President shall assent to a Bill within seven days after it has been presented to him for assent under Article 70, Article 71 or Article 73 and if the President fails to do so he shall be deemed to have assented to the Bill at the expiration of the said period. (2) When the President has assented or is deemed to have assented to a Bill, it shall become law and be called an Act of Parliament. (3) - No Act of Parliament, and no provision in any such Act, shall be invalid by reason only that some recommendation, previous sanction or consent required by the Constitution was not given if that Act was assented to or deemed to have been assented to in accordance with the Constitution. " The same was substituted by the R.C.O. as under:-- "R.C.O., Article 75.--(1) When a Bill is presented to the President for, assent, the President shall, within, forty-five days,-- (a) assent to the Bill; or (b) in the case of a Bill other than a Money Bill, return the Bill to Majlis-e Shoora (Parliament) with a message requesting that the Bill, or any specified provision thereof, be considered and that any amendment specified in the message be considered. ' (2) When the President has returned a Bill to the Majlis-e-Shoora (Parliament), it shall be reconsidered by the Majlis-e-Shoora (Parliament) in joint sitting and, if it is again passed, with or without amendment, by the Majlis-e-Shoora (Parliament), by the votes of the majority of the local membership of the two Houses, it shall be again presented to the President and the President shall assent thereto. (3) When the President has assented to a Bill, it shall become law and be called an Act of Majlis-e-Shoora (Parliament). (4) No Act of Majlis-e-Shoora (Parliament), and no provision in any such ' Act, shall be invalid by reason only that some recommendation, previous sanction or consent required by the Constitution was not given if that Act was assented to in accordance with the Constitution. " The Eighth Amendment adopted the above. substituted Article 75 with the modification in clause (2), namely, that the words "the President shall assent thereto" which appeared as the last words in the aforesaid sub-clause, were substituted by the words "the President shall not withhold assent therefrom". (vii) Original Article 90 provided as under:-- "Original Article 90.--(1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister who shall be the chief executive of the Federation. (2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers. (3) The Prime Minister and the Federal Ministers shall be collectively responsible to the National Assembly:" The R.C.O. substituted the same as follows:-- "The executive authority of the Federation shall vest in .the President and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution. " Whereas the Eighth Amendment resubstituted as under:-- "90.-(l) The executive authority of the Federation shall vest in the President and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution. (2) Nothing contained in clause (1) shall-- (a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any Province or other authority: or (b) prevent the Majlis-e-Shoora (Parliament) from conferring by law functions on authorities other than the President. " (viii) Original Article 91 of the Constitution provided as follows:-- "Original Article 91.--(1) The National Assembly shall meet on the thirtieth day following the day on which a general election to the Assembly is held, unless sooner summoned by the President. (2) After the election of the Speaker and the Deputy Speaker, the National Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its Muslim members to be the Prime Minister. (3) The Prime Minister shall be elected by the votes of the majority of the total membership of the National Assembly: Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Prime Minister Provided further that, if the number of votes secured by two or more members securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of votes of the members present and voting. (4) The member elected under clause (3) shall be called upon by the President to assume the office of Prime Minister and he shall, before entering upon the office, make before the President oath in the form set out in the Third Schedule." The R.C.O. substituted the same as under:-- (1) There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. (2)' The President shall in his discretion appoint from amongst the members of the National Assembly a Prime Minister who, in-his opinion, is most likely to command the confidence of the majority, of the members of the National Assembly. (3) The person appointed under clause (2) shall; before entering upon the office, make before the President oath in the form set out in the Third Schedule and shall within a period of sixty days thereof obtain a vote of confidence from the National Assembly. (4) The Cabinet, together with the Ministers of State, shall be collectively responsible to the National Assembly. (5) The Prime Minister, shall, hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the .confidence of the majority of the members of the National Assembly. (6) The Prime Minister may, by writing under his hand addressed to the President, resign his office. (7) A Minister who for any period of six consecutive months is not a member of the National Assembly shall, at the expiration of that period, cease to be a Minister and shall not before the dissolution of that Assembly be again appointed a Minister unless he is elected a member of that Assembly: Provided that nothing contained in this clause shall apply to a Minister who is a member of the Senate. (8) Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or as Minister of State during any such period. " It may be observed that under the Eighth Amendment, a new clause (2A) was added and clause (5) was amended. The same read as follows:--, "91.--(1). .. . .. ... ... .... .. ... ... ... ... .. (2).. ... .... ... ........ ... ... ........ . (2A). Notwithstanding anything contained in clause (2), after the twentieth day of March, one thousand nine hundred and ninety, the President shall invite the member of the National Assembly to be the Prime Minister who commands the confidence of the majority of the members of the National Assembly, as ascertained in a session of the Assembly summoned for the purpose in accordance with the provisions of the Constitution. . (3) ......................................... (4) .................................. (5) The Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly. (6) . (7) (8) . The remaining clauses of the above Article were incorporated through the Eighth Amendment without any modification. (ix) Original Article 93 of the Constitution reads as follows:-- "Original Article 93.--(1) The Prime Minister shall continue to hold office until his successor enters upon the office of Prime Minister. (2) Nothing in Article 91 or Article 92 shall be construed to disqualify the Prime Minister or a Federal Minister or a Minister of State from continuing in office during the period the National Assembly stands dissolved." The R.C.O., substituted the same as under:-- "R.C.O., Article 93.--(1) The President may, on the advice of the Prime Minister, appoint not more than five Advisers, on such terms and conditions as he may determine. (2) The provisions of Article 57 shall also apply to an Adviser. " It may be noticed that no amendment was made in the above Article by the Eighth Amendment and the same was adopted. (x) Original Article 99 of the Constitution reads as under:-- "Original Article 99.

(1) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the Federal Government, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. (2) The Federal Government may regulate to allocation and transaction of . its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it." The same was substituted by the R.C.O. as follows:-- "R.C.O.. Article 99.--(1) All executive actions of the Federal Government shall, be expressed to be taken in the name of the President. (2) The President shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order of instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the President. (3) The President shall also make rules for the allocation and transaction of the business of the Federal Government. " The same was adopted by the Eighth Amendment. (19)(i), I may highlight the above amendments brought about by the R.C.O.' and the Eighth Amendment in juxtaposition with the original versions of the Constitution as amended up to 5-7-1977. It may be pointed that .under original, Article 46 the Prime Minister was required to keep the President informed on matters of internal and foreign policy and all legislative proposals the Federal Government intended to bring before the Parliament. Whereas under the amended Article, the following duties have been imposed on the Prime Minister-- (a) to communicate to the President all decisions of the Cabinet relating to the administration of the affairs of the Federation and proposals for legislation, (b) to furnish such information relating to the administration of the affairs of the Federation and the proposals for legislative as the President may call for, and (c) if the President so requires to submit for consideration of the Cabinet any matter on which a decision has been taken by the Prime Minister but which has not been considered by the Cabinet. It may be pertinent to mention that above amended Article 46 in fact had been lifted from Pakistan Constitution, 1956 (hereinafter referred to as 1996 Constitution), as Article 42 of the said Constitution was couched in the same language. Indian Constitution also contains Article 78 which is identical to the above-amended Article 46. (ii) It may further be pointed out that original Article 48 had three clauses. Whereas under the R.C.O. the above-substituted Article had six clauses. It may be mentioned that under the Eighth Amendment the above substituted Article has been retained with the modification that clause (2) thereof was omitted It may be observed that original clause (1) provided that in the performance of his functions, the President shall act in accordance with the advice of the Prime Minister and such advice shall be binding upon him. Whereas under the substituted clause the words "and on" appearing after the words "the President shall act" and the words "and such advice shall be binding on him" have been deleted. At this juncture I may point out that it, was vehemently urged by Mr. Shahid Hamid and other counsel appearing in support of the, Constitution petitions that the above amendments have made significant difference as to its binding nature. I am not impressed by the above submission. Since under the substituted clause (1), by virtue of proviso to it, the President has been empowered to require the Cabinet to reconsider or consider the advice tendered under the above clause, the words "shall be binding on him" could not have been retained. The omission of the words "on and" are also of no significance. It will not be out of context to point out that in clause (7) of Article 37 of '1956 Constitution it was provided that, "(7) In the. exercise of his functions, the President shall act in accordance with the advice of the Cabinet on the appropriate Minister or Minister of State, as the case nay be, except in cases where he is empowered by the Constitution to act in his discretion, dud except as respects the exercise of his powers under clause (6; " It may further be highlighted that original Article 74 of the Indian Constitution provided that "There shall be a Council of Ministers with the Prime Minister as the head to advise the President". It may be observed that by the Constitution (42nd Amendment) Act, 1974, the words "who shall, in the exercise of his functions, act in accordance with such advice" were added. Then through the Constitution (44th Amendment) Act, 1978, a proviso to the effect that "provided that the President may require the Council of Ministers to reconsider such advice either generally or otherwise and the President shall, act in accordance with the advice tendered after such reconsideration was added. The above substituted clause (1) is in line with clause (7) of Article 37 of 1956 Constitution and .Article 74 of the Indian Constitution. It may also be pointed out that Indian Supreme Court has held that even under unamended above Article 74 the advice of the Prime Minister was binding on the President. In this regard reference may be made to the following cases: