P L D 2001 Supreme Court 1028 (PLP)

4. It is asserted that paras. 29, 30 and 43 of the aforesaid judgment are being exploited by vested interest‑, for seeking dismissal of said Judges. The petitioner, therefore, prayed for the following reliefs and directions:‑‑ (i) The Fundamental Right of the petitioner to practise the Profession of Law needs enforcement in the peculiar circumstances of the instant case by directing that inter alia paras. 29, 30 and 43 are liable to be eliminated from the context of the judgment of the Supreme Court reported as "PLD 2001 SC 568" . (ii) Respondent‑Federation has no lawful authority to initiate any Reference against the two targeted Judges unless and until paragraphs 29, 30 and 43 are eliminated from the context of the judgment. (iii) Paras. 29, 30 and 43 in the aforesaid judgment amount to Bill of Attainder against the targeted Judges. In the presence of these paragraphs, the field stands pre‑empted and Supreme Judicial council shall not be in a position to adjudicate even if a proper Reference is filled against the concerned Judges. (iv) Respondent Federation has failed to do what it is required by law to do to restore public confidence in the Independence of Judiciary even in the Regime of the Chief Executive. (i) Inter alia, paras. 29, 30 and 43, be directed to be eliminated from the context of the judgment of the Supreme Court, reported as PLD 2001 SC 568, as these are neither necessary not justified for the findings recorded therein. (ii) Respondent‑Federation be restrained from initiating and Reference against any targeted Judge on the basis of the impugned paragraphs in the aforesaid judgment. (iii) Respondent Federation should take necessary steps to restore public confidence in the Independence of Judiciary. (iv) Any other relief deemed suited to the peculiar facts of this case may also be afforded."

5. The petition on 30‑5‑2001 was returned by Deputy Registrar (Judicial) of this Court on the ground that it was not entertainable in view of the law laid down by this Court in the case reported as Muhammad Ikram Choudhry and others v. Federation of Pakistan and others PLD 1998 SC

103. Against above order the petitioner has filed an appeal being C.M.A. No. 13 of 2000 and it was ordered that the matter be placed before the Court.

6. At the outset we asked the petitioner to assume as if no order has been passed by the Deputy Registrar and the matter has directly been placed before this Bench and to make his submissions if the petition, as it is, could be entertained. He submitted his point of view accordingly. Although the petition has been filed for alleged enforcement of fundamental rights, but for all practical purposes it has been directed to review, modify or alter the judgment delivered by this Court in the aforesaid Criminal Appeals. Primarily it is for expunction of remarks and matter connected therewith against said two learned Judges, but by twisting the facts an attempt has been made to bring it within the realm of independence of judiciary. The judgment delivered in said appeals does neither diminish nor tarnish the concept of independence of judiciary. On the contrary, it unequivocally postulates that no body, whatever his status may be, is above law and this was simply demonstrated in said judgment in clear terms, strengthening the concept of independence of judiciary, its supremacy and rule of law. It is significant to note that during course of arguments the petitioner frankly conceded that he had no material to controvert the findings recorded by this Court on the point of bias in said appeals nor challenged its correctness, but laid great emphasis on the fact that so could be done without naming abovementioned two learned Judges. The facts are to be stated as they are. The finding is to be recorded on the basis of those facts, which shall be neither more nor less, but in conformity of those established facts. Exactly so was done in said appeals.

8. Next point to be considered is that whether this Court, while exercising jurisdiction under Article 184(3) of the Constitution, can interfere in the impugned judgment delivered by the Full Bench of this Court. While disposing of various Constitutional petitions above point was thrashed out by this Court by a Bench comprising of five learned Judges in the case referred to in para. 5 above. We are of the view that we cannot do better than to quote the observations of this Court recorded in said case, which are as follows:‑‑ "

4. They were unable to demonstrate that a Constitution petition under Article 184(3) of the Constitution could be entertained against an order of another Bench of this Court passed in exercise of the same jurisdiction. However, the thrust of their arguments was that the petitions involve unusual and unprecedented situations where some Judges of the same Court had restrained the then Chief Justice from performing this judicial and administrative functions as the Chief Justice. Their further submission was that the abovz7 Constitution petitions involved question of great public importance which go to the root of existence of this Court. 5. we tried to impress upon them that the above facts would not attract Article 184(3) of the Constitution if otherwise the aforesaid petitions are not sustainable in view of well‑settled proposition of law, firstly, that a Bench of this Court cannot sit as a Court of Appeal over an order or a judgment of another Bench of this Court and, secondly, Article 184(3) confers jurisdictions on this Court of the nature contained in Article 199 of the Constitution, clause (5) of which excludes inter alia the Supreme Court and the High Courts. In other words, no writ can be issued by a High Court or the Supreme Court against itself or against each other or its Judges in exercise of jurisdiction under Article 199 of the Constitution, subject to two exceptions, namely, (i) where a High Court Judge or a Supreme Court Judge acts as persona designata or as a Tribunal or (ii) where a quo warranto is prayed for and a case is made out."

9. In view of above, we hold that while exercising jurisdiction under Article 184(3) of the Constitution the findings recorded by this Court in aforesaid Criminal Appeals cannot be set aside/modified, nor any portion of it can be expunged or substituted.

10. The petitioner in support of his above submissions heavily relied upon on the cases reported as (1) S.P. Gupta v. M. Tarkunde AIR 1982 SC 149; (2) Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161.

11. Suffice it to say that dictums laid down in these cases are not attracted to the circumstances of this case, as such, there is no question of their applicability. By short order dated 12‑6‑2001 we held that this petition was not entertainable arid ordered its return to the petitioner and these are the Q.M.H./M.A.K./A-154/S Order accordingly.