1979 PLP 427 (SCMR)

Abdul Hafeez Pirzada, Advocate Supreme Court and Afzal Siddiqui, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing : 24th February, 1979. ANWARUL HAQ, C. J.‑This order will dispose of Criminal Misc. Applica tion bearing No. 1.6 of 1979, instituted by Mr. Abdul Hafeez Pirzada, Advocate, on behalf of the petitioner Zulfikar Ali Bhutto in Criminal Review Petition No. 5 of 1979. The petition states that at the specific request of the petitioner his appeal bearing No. 11 of 1978, directed against the judgment of the Lahore High Court in the case relating to the murder of Nawab Muhammad Ahmad Khan, was ordered to be heard by the full Court consisting of nine Judges, but Mr. Justice Qaisar Khan retired during the hearing of the case and was not recalled as an ad hoc Judge under Article 182 of the Constitution, although a request in this behalf was made by the petitioner. Later, Mr. Justice Waheeduddin Ahmad, an ad hoc Judge of the Supreme Court, fell ill, as a result of which the case was continued by the remaining seven Judges in his absence from the 5th of December, 1978, onwards. A request has been made in the petition that as Mr. Justice Qaisar Khan had heard the major portion of the submissions made by the defence counsel and as Mr. Justice Waheeduddin Ahmad had practically heard the whole case, and after his departure from the Bench the defence counsel completed his submis sions in a few days, these two Judges be recalled as ad hoc Judges under Article 182 of the Constitution and nominated to sit on the Bench for the disposal of the Review Petition. In order to reinforce these submissions Mr. Ahdul Hafeez Pirzada has drawn our attention to a communication addressed by the former President Mr. Fazal Ellahi Chaudhry to President General Mohammad Zia‑ul‑Haq, setting forth certain considerations which should weigh with the President in deciding whether the sentence of death, upheld and confirmed by the Supreme Court against the petitioner, should be carried out. It appears to Mr. Pirzada that these are weighty considerations which should induce the Chief Justice to request the President of Pakistan to recall these two Judges under Article 182 of the Constitution. We do not know the source from which Mr. Pirzada has obtained a photostat copy of the letter purporting to have been addressed by the former President Mr. Fazal Ellahi Chaudhry to President General Mohammad Zia‑ul‑Haq, but it was stated at the Bar by Mr. Pirzada that the letter had been released to the Press by Mr. Chaudhry himself. It is not for us to comment upon the wisdom lying behind the publication of this letter, which apparently was in the nature of a confidential communication from the former head of State to the present head of State. However, a perusal of this letter makes it clear that Mr. Fazal Ellahi Chaudhry had no intention of commenting upon the judicial verdict of the Supreme Court, but was merely spelling out extra‑judicial considerations which should weigh with the Executive in taking a decision in this matter. In these circumstances, the introduction of this letter in the present proceedings is nothing but an attempt to politicise the matter by suggesting that the Constitution of the Bench required for the disposal of this Review Petition should be determined not by the relevant rules of the Supreme Court but by extraneous considerations. We deprecate such an attempt. The position under the Supreme Court Rules is clear and unambiguous. Rule 6 of Order XXVI lays down that "as far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed". Now, in the present case, the judgment under review was delivered by seven Judges of this Court, who are all available on the Bench for the disposal of the Review Petition. There is, accordingly, no justification for any departure or deviation from the relevant rule just mentioned. It will, however, not be out of place to mention that Mr. Justice Qaisar Khan retired from the Supreme Court on the 31st of July, 1978, on attaining the age of superannuation prescribed by the Constitution. The hearing continued after his retirement for almost a period of four months upto the 23rd of December, 1978, during which period the defence counsel fully participated in the proceedings, in spite of the retirement and absence of Mr. Justice Qaisar Khan. Similarly, although Mr. Justice Waheeduddin Ahmad's appointment as ad hoc Judge of the Supreme Court was extended by the President of Pakistan until such time as the bearing of the petitioner's appeal is concluded, but unfortunately he was taken seriously ill on the evening of the 21st of November 1978, and was unable to join the hearing of this case even though it was adjourned from time to time for a period of nearly three weeks. Finally, on the 5th of ‑December, 1978, the entire position was considered at length, by the remaining seven Judges of the Bench in the light of the medical reports available on the illness of Mr. Justice Waheeduddin Ahmad, and the submissions made by the learned counsel for the parties, besides a letter sent by the learned Judge himself to the effect that he was unable to join the Court for four or six weeks, and if the Court could not wait for him till then, then a new Bench might be formed for the disposal of the case In a detailed order recorded by the seven Judges on that date it was concluded that it had become abundantly clear from the reports submitted by various medical specialists that the learned Judge would not be able to resume his judicial functions in the foreseeable future in the present state of his health; that the time required for his absolute recovery was uncertain in terms of weeks and months; and that even after he had made recovery, he would need a couple of months for recuperation, and even then he may not be fit to undertake strenuous work: In these circumstances we reluctantly came to the conclusion that the hearing of this appeal as well as the two connected appeals had to continue before the remaining seven members of the Bench. It was further stated in that order that: "now that one member of the Bench unfortunately become incapable, owing to his continued indisposition, sit on the Bench, there does not appear to be any legal impedement in the way of hearing of these cases continuing before the remaining seven Judges of the same Bench. This number far exceeds the minimum number of three Judges required under the rule just mentioned (Rule 1 of Order XI of the Supreme Court Rules)". It was added that "we are also of the view that, in the circumstances, there is in fact no question of reconstituting the Bench, because there is no addition or alteration, except that one member is not available to us for an uncertain and indefinite period, and the remaining members will have to carry on without him. This being the case, any considerations of propriety or otherwise arising in cases of reconstitution of Benches by altering the personnel of the Bench for no valid reason are irrelevant in the present context." This order of the 5th of December, 1978, was made in the presence of the learned defence counsel, and after due consideration of all the submissions, made by him. He completed his arguments in the case after we had decided to proceed with the appeals before the remaining seven Judges of the Bench. For this reason as well it was inappropriate for any member of the defence team to try to reopen the matter on considerations other than judicial and legal specially when the petitioner himself appeared before this Bench on four successive days and expressed his full confidence therein. It will be seen, therefore, that it was on account of unavoidable circum stances that the Bench which started with the full complement of nine Judges stood reduced to seven Judges by the 5th of December, 1978, and ultimately the judgment in the petitioner's appeal, and the two connected appeals, was delivered by this Bench Mr. Justice Qaisar Khan and Mr Justice Wahiduddin Ahmad not being associated with delivering the judgment in these appeals, and all the seven Judges who delivered the judgment being still available, there could be no question of recalling Mr. Justice Qaisar Khan and Mr. Justice Wahiduddin Ahmad for deciding the Review Petition For the foregoing reasons this application is dismissed as being misconceived. Application dismissed.