1989 PLP 2069 (SCMR)

SHAFIUR RAHMAN, J.‑‑This petition by the Federal Government seeking leave to appeal against the judgment of the Lahore High Court dated 21‑12‑1988 is shown to be barred by 257 days. Mr. Yahya Bakhtiar, the learned Attorney‑General has explained the delay by stating that the mandatory notice required to be served on the Attorney‑General for Pakistan under Order XXVII‑A, Rule 1 of the Code of Civil Procedure, 1908, in such a case was at no stage served. As the decision given was without notice to the Government and the A impugned decision came to the notice of the Government at a very late stage and that too through the newspapers, dated 20th to 23rd October, 1989, the delay is fully explained. The learned Attorney‑General has relied on the decision in Ch.. Manzoor Elahi v. Federation of Pakistan etc. (P L D 1975 S C 66) in which in similar circumstances and in view of the importance of the Constitutional questions involved, a delay of 208 days was ignored by the Supreme Court.

2. Mr. M. D. Tahir a practising Advocate of Lahore High Court invoked the Constitutional jurisdiction for challenging the appointment of eleven Judges (respondents Nos. 3 to 13) by a notification appearing m the Press on 23‑10‑1988. Among other grounds it was pleaded that there was no Prime Minister in the Caretaker Government and without the consent and advice of the Prime Minister the President could not authorize elevation of persons to the Bench of the High Court and the appointment was "without lawful authority, arbitrary, unjustified, an act of misuse of jurisdiction and unconstitutional". By the impugned judgment, without notice to the respondents in the writ petition the High Court rejected the plea and dismissed the constitution petition in limine observing as hereunder:‑‑ "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 statute there arc 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. Niala Begum (P L D 1987 Lah. 3.'36) to which one of us (Lone, J.) was a party."

3. The learned Attorney‑General has made it clear that as very important questions of law with regard to the interpretation of Constitutional provisions relating to the distribution of functions and powers between the President and the Prime Minister are the subject‑matter of decision in the constitution petition, he would not be seeking any relief against the Judges (respondents Nos. 3 to 13) who have been imp leaded in the petition as pro forma respondents, as the matter of their appointment is past and closed. He would be satisfied with a declaration of the law on the subject as was done in Haji Saifullah's case (P L D 1989 S C 166). The need for an authoritative pronouncement is urgent, genuine and called for.

4. We consider that the questions raised in the petition for leave to appeal B are of public importance and relate to the interpretation of the constitution and concern the functioning of the parliamentary democracy in our country. Hence, subject to all just exceptions the delay is condoned and leave to appeal is granted.

5. The High Court Judges (respondents Nos. 3 to 13) who have been made pro forma respondents need not be served with notices in the appeal. However, the learned Advocates‑General of the four Provinces and the Presidents of the High Courts Bar Associations of the four Provinces shall be served in the appeal.

6. Mr. Ali Ahmad Fazeel, Mr. S. M. Zaffar and Mr. Aziz A. Munshi, Senior Advocates are called upon to assist the Court as amicus curiae.

7. The case be made ready for hearing at Karachi on the present record with liberty to the parties to file such additional documents as they consider necessary. To come up for hearing at Karachi on the 12th of November, 1989. NASIM HASAN SHAH, J.‑‑I agree that questions of public importance relating to the interpretation of the Constitution are raised in this petition which need consideration. However, I am not sure whether this petition which seeks leave to appeal against the judgment of the Lahore High Court dated 21‑12‑1988 is competent. According to the petitioner he is only aggrieved with the interpretation placed in the judgment upon the provisions of the Constitution and the findings recorded therein but not with the ultimate conclusion of the Court. How such inconsistent pleas can co‑exist is not easy to comprehend. Anyhow, this aspect of the matter can also be considered at the hearing of the appeal. Leave is, granted with these observations. M.B.A./F‑150/S Leave granted.