1988 PLP 173 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The petitioner in this application has ' complained that the order passed by us yesterday on his petition and miscellaneous application has not yet been complied with by the Registrar of Supreme Court and efforts are being made to frustrate its implementation. The office has confirmed that the copy of the order passed by us yesterday in the above petition, has been duly served on the Registrar and the Additional Registrar of Supreme Court. Meanwhile conflicting orders have been passed by the Benches of this Court functioning at the principal seat and at Quetta circuit creating a very tense and alarming situation, which is threatening the very existence of this august institution.

2. In these circumstances, in order to save the situation from taking a disastrous turn, we call upon all State functionaries, to fulfil their constitutional obligations and acting in aid of Supreme Court in accordance with the provision of Article 190 of the Constitution of Islamic Republic of Pakistan to ensure that the order passed by us yesterday in the above petition is complied with in letter and spirit and necessary arrangements are made for holding of the Full Court Session at the principal seat at Islamabad, for hearing of the above and all other similar constitutional matters.

3. While we were hearing the above application, we received a fax from the Karachi Registry communicating the order passed by senior puisne Judge, Mr. Justice Ajmal Mian, after receipt of our order dated 27-11-1997, which reads as follows:-- "I am in receipt of an order dated 27-11-1997 by Fax through Peshawar Registry passed by Saiduzzaman Siddiqui and Fazal Ilahi Khan, JJ. in Constitution Petition No.l-P of 1997 (Akhunzada Behrawar Saeed v. Mr. Justice Sajjad Ali Shah and others), wherein in the concluding paragraph, the following has been observed:-- 'Since the Hon'ble Chief Justice, as a consequence of the order passed by the Quetta Bench of this Court, will not be in a position to discharge his judicial or administrative functions, a direction is sought to be issued to the Registrar of the Supreme Court of Pakistan that he should place all these cases for consideration before the senior Puisne Judge Mr. Justice Ajmal Mian, and obtain orders from him accordingly. Since these cases involve a very important question, in our view, it will be appropriate that this matter alongwith other similar matters, be placed before the Full Court constituting all the Judges of Supreme Court except the Hon'ble Chief Justice of Pakistan, who is a respondent in the petition, for an authoritative pronouncement on the subject. The Registrar, Supreme Court of Pakistan, is accordingly, directed to take immediate steps and place the matter forthwith before the learned Puisne Judge, Mr. Justice Ajmal Mian, at Karachi and obtain appropriate instructions for constitution of the Bench for hearing of these cases.' As I believe in the maxim "Nemo debet esse judex in propria sua causa" (i.e. no man can be Judge in his own cause) and since I am the senior most Judge, I would not like to sit on the Bench which may hear the petitions relating to the appointment of the Hon'ble Chief Justice including the above petition and, therefore, I would not like to pass any administrative order in respect thereof, particularly keeping in' view Article IV of the Judges' Code of Conduct, which provides as follows:-- 'A Judge must decline resolutely to _ act in case involving his own interest, including those of persons he regards and treats as near relatives or close friends. A Judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers. To ensure that justice is not only done, but is also seen to be done, a Judge must avoid all possibility of his opinion or action in any case being swayed by any consideration of personal advantage, either direct or indirect.'

3. I would, therefore, direct the Registrar that instead of sending the file of the above case to me pursuant to aforesaid judicial order of this Court, the same may be sent back to the Bench which had passed the order, namely, Saiduzzaman Siddiqui and Fazal Ilahi Khan, JJ. A copy of this order may be faxed to the Hob'ble Bench for information. "

4. As the Hon'ble senior puisne Judge has declined to preside over the Full Court and expressed his inability to constitute a Full Court for the reasons stated in his order reproduced above, we direct that the matter may be placed before the next senior Judge for constituting the Full Court for hearing of the above case in terms of our order dated 27-11-1997.

5. A copy of this order may be sent through Fax to the President of Pakistan, Prime Minister of Pakistan, Governors and the Chief Ministers of all the four Provinces, the Chiefs of Army, Navy and Air Force for compliance. A copy of this order may also be faxed to Registrar, Supreme Court, Islamabad for immediate compliance. Copies of this order may also be sent to the Registries of this Court functioning at Lahore, Karachi and Quetta, with a request to the Hon'ble Judges present there to make arrangements for their presence at Islamabad, on the date the Full Court hearing takes place there. M.B.A./A-31/S Order accordingly.