The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(a) Constitution of Pakistan (1973) Art. 199(5)

With greatest respect, we may point out that the judgment delivered by a Judge or group of Judges are the functions which identify the Judge or Judges with the Court and therefore, to that extent the bar contained in clause (5) of Article 199 of the Constitution is fully attracted. The conclusions of Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hassan’s case, supra, were also not different. [p. 280] BB

(b) Constitution of Pakistan (1973) Arts. 199 & 187

What these two learned Members of the Bench (Salahuddin Ahmed and Muhammad Gul, JJ.) in Abrar Hassan’s case said was, that while the orders passed by a Judge in exercise of the jurisdiction of the Court cannot be called in; question under Article 199 of the Constitution, the acts of a Judge performed in his personal capacity did not enjoy this protection. The difference between a Judge acting as a Court and a Judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a Judge will not be answerable for wrong done by him in his individual capacity. It may be pointed out that by accepting the office of a Judge, a person does not lose his individual identity as an ordinary citizen. Therefore, while action taken or orders passed by him in the former capacity as a Judge of the Court cannot be brought under challenge, under Article 199 of the Constitution, his action as an ordinary individual will be subject to ordinary law of the land including Article 199 of the Constitution. In this view of the matter, in our humble opinion, the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hassan’s case in respect of the maintainability of a petition seeking information in the nature of quo warranto against a Judge of superior Court seems to be more rational, practical and nearer to the spirit of the provision of the Constitution. A petitioner in a petition filed against a Judge of the superior Court seeking information in the nature of quo warranto, does not challenge any action or order of a Judge passed in his capacity as a Judge of the Court or a member of the Court. The qualification to hold the office of a Judge is personal to the individual and has nothing to do with his performance of duty as a Court or member of the Court. The qualifications for appointment of Judges of the superior Court are laid down meticulously in the Constitution. To possess the qualifications prescribed under the Constitution is a sine qua non for an individual to hold the office of a Judge of superior Court. Therefore, when the appointment of a Judge of superior Court is challenged on the ground that he did not possess the qualification prescribed by the Constitution, the relator is not asking the Court to strike down any of his actions which he has performed or is performing as a judge of the superior Court but asks for examination of his personal qualification to be entitled to hold the office of the Judge of superior Court. Such an exercise, in our humble opinion, does not fall within the mischief of the provision of Article 199(5) of the Constitution. We are, therefore, in no doubt that a petition seeking information in the nature of quo warranto lies against the Judge of a superior Court under Article 199 of the Constitution. We are further of the view that such an attack on the validity of the appointment of a Judge of a Superior Court through collateral proceeding is not a proper remedy as firstly, such occasion may or may not arise and secondly, when the appointment of a Judge is attacked collaterally in a proceeding arising from his order, he is not necessarily arrayed as a respondent in the Court and therefore, he cannot be called upon to justify his appointment. It is also to be noted that in a collateral attack, on the validity of the appointment of Judge, the proceedings are directed against the order passed by him and validity of his appointment is only challenged through a side wind, which is possible only, if the order passed by the Judge is subject to appeal, revision, review or other proceedings before a higher forum. Therefore, if the law does not permit any appeal or other proceedings against the order passed by a Judge, the occasion to challenge the validity of his appointment in collateral proceedings may not arise at all. For this reason too, we are in respectful agreement with the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. in Abrar Hassan’s case that a petition against the Judge of a superior Court seeking information in the nature of quo warranto is maintainable under Article 199 of the Constitution. This view is more rational and has the effect of advancing the remedy and suppressing the mischief. [p. 280, 281]CC

Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No. 2 also heavily relied on the observations of Cornelius, C.J., Yaqub Ali, C.J. and Abdul Kadir Shaikh, J. in Jamal Shah, Abrar Hassan and Muhammad Akram Shaikh’s cases (supra) respectively, to contend that if the principle that a Judge of superior Court cannot issue a writ to another Judge of the same Court under Article 199 of the Constitution is not strictly adhered to, it will effect and destroy the traditional comity existing between the Judges of superior Courts. Maintenance of high degree of comity between the Judges of superior Courts is neither a rule of law nor a Constitutional requirement. It is only a highly desirable tradition which has existed for long and should continue to be followed by the Judges to maintain harmony and smooth working of the Courts, and also to preserve their institutional image in the eyes of the public. However, this high tradition of maintaining comity between the Judges of superior Courts cannot come in the way of discharge of more important Constitutional duty imposed upon the Judges of the superior Courts to protect and defend the Constitution under the oath of their office. Therefore, if the violation of a provision of the Constitution is brought to the notice of a Judge of the superior Court in a properly filed proceedings which involved the person of another Judge of the same Court, the relief, in the absence of a Constitutional bar, cannot be declined relying on the principle of high tradition of maintaining comity between the Judges of the superior Courts. The proceedings in the nature of quo warranto as held by Indian Supreme Court in the case of University of Mysore v. Govinda Rao (AIR 1965 SC 491) confer jurisdiction and authority on superior Courts to control executive action in the matter of making appointments to public officers against the relevant statutory provisions. These proceedings provide a positive safeguard to citizens against usurpers of public offices, who in some cases may be allowed to continue to hold the office in connivance or with the help of the executive authority. [p. 287, 288] DD

(c) Constitution of Pakistan (1973), Articles 209 & 199

At this stage, we may also deal with another argument advanced by Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No. 2, in this behalf. Mr. Abdul Hafeez Pirzada, very vehemently argued that the only method provided under the Constitution to remove a Judge of the superior Court from his office is, to initiate proceedings against him before the Supreme Judicial Council as provided under Article 209 of the Constitution. Article 209 of the Constitution referred by the learned counsel reads as under:–

With due deference to the learned counsel, firstly, the right to move the Supreme Judicial Council (SJC) against a Judge of the superior Court under Article 209 of the Constitution is not available to any individual. Secondly, the President alone on the advice of Prime Minister or the Cabinet as the case may be, can refer a case of the Judge of the Superior Court to Supreme Judicial Council for holding an enquiry against him. Thirdly, the jurisdiction of “Supreme Judicial Council to hold an enquiry against the Judge of a Superior Court arises only when a reference is made to it by the President in this behalf. Fourthly, the enquiry by the Supreme Judicial Council against the Judge of a Superior Court under Article 209 ibid, is limited only to two points, namely (i) the incapacity of the Judge to perform the duties of his office property arising from any physical or mental incapacity, and (ii) misconduct of the Judge concerned. Lastly, the findings of the Supreme Judicial Council in such an enquiry are recommendatory in nature and the action, if any, is to be taken by the President on the advice of the Prime Minister or the Cabinet. It is, therefore, quite clear that besides the fact that the Supreme Judicial Council itself cannot grant any relief to a person aggrieved by the illegal and unconstitutional appointment of a Judge of the superior Court, the invalidity and unconstitutionality of the appointment of a Judge of superior Court are outside the purview of the enquiry under Article 209 of the Constitution, because such an appointment has no nexus either with the mental or physical incapacity of the Judge to perform properly, the duties of his office or with the misconduct of the Judge concerned. Therefore, the remedy provided under Article 209 of the Constitution cannot be equated with the proceedings filed under Article 199(1)(b)(ii) of the Constitution to challenge the unconstitutional appointment of a Judge of the superior Court. The reason for keeping the question of validity of constitutionality of the appointment of a Judge of superior Court outside the purview of the enquiry under Article 209 of the Constitution is obvious, as validity of such appointment is open to be challenged before the High Court under Article 199 of the Constitution in appropriate proceedings. [p. 289, 290] EE

(d) Constitution of Pakistan (1973), Articles 184(3), 199 & 187

Another very important and distinguishing feature of these cases is that they were not filed under Article 199 of the Constitution which applied exclusively to the proceedings brought before the High Court. These cases were filed under Article 184(3) of the Constitution which confers exclusive jurisdiction on this Court. The proceedings under Article 199 of the Constitution before the High Court are subject to various constraints mentioned in the said Article. However, the proceedings before this Court under Article 184(3) of the Constitution differ in various ways from the proceedings before the High Court under Article 199 of the Constitution. For instance, a person may be non-suited by the High Court in proceedings under Article 199 of the Constitution on the ground that he has no personal grievance, and therefore, he is not an aggrieved person. A petitioner before this Court under Article 184(3) of the Constitution, may not have a personal grievance in the case, but if he satisfies the Court that question raised by him is of public importance and it relates to enforcement of fundamental rights guaranteed under the Constitution of a reasonably large section of people, he can successfully maintain the petition. The proceedings before this Court under Article 184(3) of the Constitution are in the nature of a public interest litigation in contradistinction to the proceedings before the High Court where the litigant seeks redress of his personal grievance and injury. Therefore, the scope and nature of proceedings, before this Court under Article 184(3) of the Constitution differ in any ways from the proceedings before the High Court under Article 199 of the Constitution. The trappings and constraints provided in Article 199 of the Constitution on the exercise of power by the High Court, are therefore, not applicable to this Court under Article 184(3) of the Constitution. The case Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632). [p. 290] FF

(e) Constitution of Pakistan (1973), Articles 184(3), 199 & 187

When this Court takes up a case for adjudication in exercise of its power under Article 184(3) of the Constitution, its jurisdiction is controlled and regulated by the terms of Article 184(3) and the trappings mentioned in Article 199 of the Constitution are not applicable to it. Therefore, while dealing with a case under Article 184(3) of the Constitution, this Court, be virtue of Article 187(1) of the Constitution, would be competent to issue direction or order which may be necessary for doing complete justice in the case. [p. 295] GG

(f) Constitution of Pakistan (1973), Articles 184(3), 199(5) & 187

It will be convenient at this stage to deal with an ancillary argument of Mr. Abdul Hafeez Pirzada in these cases. The learned counsel contended that even if it is held that proceedings for seeking information in the nature of quo warranto are maintainable against a Judge of superior Court, no interim order prohibiting or restraining the Judge from performing his functions could be granted during the pendency of the case. While dealing with the scope of proceedings under Article 199 of the Constitution, filed against a Judge of the superior Court, we have held that the actions of the Judge which relate to the performance of his duty and functions as a Judge of the Court or as a member of the Court, cannot be brought under challenge under Article 199 of the Constitution before the High Court. Only such actions of a Judge of superior Court are amendable to the jurisdiction of High Court under Article 199 of the Constitution, which he performs in his personal capacity, having no nexus with his official functions as a Judge of the Court. We are, therefore, inclined to hold that the High Court while hearing a case against the Judge of a superior Court under Article 199 of the Constitution seeking information in the nature of quo warranto which we have held is maintainable, cannot pass any interim order restraining the Judge from performing his functions as a Judge of the Court, in view of clause (5) of Article 199 of the Constitution. However, this restraint on the power of High Court, is not applicable to this Court while hearing a case filed directly under Article 184 of the Constitution, as the power exercised by this Court under Article 184(3) of the Constitution is not subject to constraints and trappings mentioned in Article 199 of the Constitution. As discussed earlier, the proceedings before this Court under Article 184(3) of the Constitution are regulated by the terms of this Article and further vest the jurisdiction in this Court by virtue of Article 187 of the Constitution to pass any order, direction or decree which may be necessary to do compete justice in a matter before it. Therefore, in exceptional cases, this Court, while hearing a case against the Judge of superior Court wherein the legality of his appointment is challenged, may, if the circumstances of the case so demand, pass necessary order even restraining him from performing his functions as a Judge of the Court, if the dictates of justice so demanded. [p. 295, 296] HH

(g) Constitution of Pakistan (1973), Articles 184(3), 199(5) & 187

In a case where the State challenges the right of a person to hold a public office, the burden is on the holder of the office to establish his legal right to the office. The Court in such a case can grant relief by way of injunction restraining the person from holding the office besides declaring his office vacant. Reference in this connection may be made to the following observations of this Court in the case of Masudul Hasan v. Khadim Hussain (PLD 1963 SC 203):–

It is well settled that when the writ is moved by a law officer on behalf of the State, it is for the respondent to establish his legal right to retention of the office in question. But where a private petitioner seeks the writ, the burden of proving that the respondent does not have the right to hold such office is placed upon the petitioner. On the evidence adduced before the High Court, it was clear that there was left a reasonable doubt as to the validity of the order of dismissal, and although on the face of it, it had the quality and effect of dismissing Khadim Hussain from his post, nevertheless the case was not one in which the Court would exercise its power of granting relief which is confined to—

(a) issuing an injunction to a person holding the office not to act therein, and

(b) where necessary, to declare the office to be vacant. [p. 298] II

(h) Constitution of Pakistan (1973), Articles 184(3), 199(5) & 187

We have already held that the bar contained in clause (5) of Article 199 of the Constitution is applicable to the proceedings before the High Court under Article 199 of the Constitution and this bar does not extend to proceedings before this Court under Article 184(3) of the Constitution. In the facts and circumstances stated above, we are of the view that the interim orders passed by the Quetta Bench on 26-11-1997 suspending the notification of respondent No. 2 as Chief Justice of Pakistan which was later confirmed by this Bench on 2-12-1997, is not open to any exception. [p. 298] JJ