P L D 1998 Lahore 100

Before Ihsan-ul-Haq Chaudhry and Sheikh Amjad Ali, JJ

KISTAN TOBACCO COMPANY LTD. ---Appellant

versus

PAKISTAN CHEST FOUNDATION---Respondent

Intra-Court Appeal No. 167 of 1997, heard on 16th September, 1997

Civil Procedure Code (V of 1908)--

----0. XX, R.4(2), O.XLIs R.31 & S:2(9)---Law Reforms Ordinance (XII
of 1972), S.3---Valid judgment---Essentials---Judgment written by
Judge after his retirement---Effect---Most important ingredient of
valid judgment would be reasons or grounds for decision since
validity of same in higher forum has to be seen from the reasoning
and same has to be challenged by aggrieved party with reference
to reasons---Aggrieved party was, thus, to attack reasoning of
judgment in appeal and not the narration of facts--Conclusions
arrived at by Court would not be binding without reasoning,
therefore, Courts insist that even in ex parte judgments, reasons
should be clearly given---Decision by Court to be termed as
judgment must be based on reasons and failure to comply with such
requirement would render the same nullity and unsustainable---
Where Judge had retired or had relinquished charge to assume
some other office, files were to be forthwith returned to office as,
with retirement or relinquishment of office, Court would cease to
exist---Single Judge soon after announcement of short order had
retired and detailed judgment containing reasons was scribed after
retirement---Short order was, no judgment in the eye of law, for it
did not contain reasons on basis of which decision was made, while
detailed order having been passed by the Judge after his.
retirement was legally no judgment in the eye of law---Orders of
Single Judge viz. short order and detailed order were set. aside and
case was to be deemed pending for decision.-[Judgment].

Ghulam Rahullah Khan v. Amir Sher Bahadar Khan and 142 others
1990 CLC 1883; Haji Muhammad Shafi v. Custodian, Evacuee
Property, Muzaffarabad and 3 others 1989 CLC 222; Government of
N.-W.F.P. and 2 others v. Shah Alam 1989 CLC 1542; Haji Hayat Gul
and 2 others v. Mufti Ghazi Khan and 2 others 1989 CLC 2372;
Mistri Muhammad Hassan v. Haji Said Muhammad and another
1986 CLC 1241; Sub. (Retd.) Muhammad Karim and another v.
Abdul Rashid and others 1981 CLC 71; Haji Abdul Baqi and another
v. Muzaffar Ali Khan and another PLD 1978 Quetta 56; Abdul Ghani
v. Haji Saley Muhammad PLD 1960 (W.P.) Kar. 594; M/s. Kuldip Oil
Industries Ltd. v. Ch. Pratap Singh AIR 1959 All. 505; Sabharaj and
others v. Mahesh Narain and others .AIR 1948 Oudh 27; Muhammad
Arif and others v. Muhammad Ishaq and another AIR 1937 Lah. 352;
Harbhagwan and others v. Ahmad and others AIR 1922 Lah. 122;
Kamat v. Kamat and another 8 ILR 368; Qazi Mehar Din v. Mst.
Murad Begum and others PLD 1964 SC 446; Mirza Abdul Hameed
and others v. Member, Board of Revenue II 1986 SCMR 257; Nazar
Abbas Khan, etc. v. Government of Pakistan etc. PLD 1981 Lah. 237;
Rukan Din v. Hafiz-ud-Din PLD 1962 Lah. 161; Mahboob Ali v. Syed
Qamar Ali 1972 SCMR 109; Muhammad Bashir v. Muhammad
Hussain 1977 PCr.LJ 526; Corpus Juris Secundum, Vol. 48, p.1011,
S.47 and Sh. Abdul Haq & Sons Ltd. v. The Punjab Industrial
Development Board, Lahore and 3 others PLD 1991 Lah. 427 rel.

Qazi Mehar Din v. Mst. Murad Begum and others PLD 1964 SC 446;
Nazar Abbas Khan, etc. v. Government of Pakistan etc. PLD 1981
Lah. 237; Mirza Abdul Hameed and others v. Member, Board of
Revenue-II 1986 SCMR 257; PLD 1982 Kar. 250; The Pakistan
Shipping Corporation and another v. Rustam F. Cowasjee and others
1989 SCMR 1332; Haji Rais Ahmed v. Aslam 1991 CLC 602; Hussain
Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD
1970 SC 1; Kalu Sarang and others v. Mt. Abedannessa Khatun AIR
1926 Cal. 1221; Raja Muhammad Afzal v. Ch. Muhammad Altaf
Hussain and others 1986 SCMR 1736; Mst. Fatima v. Khuda Bux and
others PLD 1959
(W.P.) Lah. 826; Muhammad Siddiq v. Syed Ali Shah and another
PLD 1976 Lah. 293; Muhammad Arif and others v. Muhammad Ishaq
and another AIR 1937 Lah. 352 and Mollah Ejahar Ali v. Government
of East Pakistan and others PLD 1970 SC 173 ref.

Mirza Mahmood Ahmad and Sajid Zahid for Appellant.

Khawaja Sated-uz-Zafar, D.A.-G. with Muzammil Akhtar Shabbir for

the State

A. Karim Malik for Respondents Nos. 1 to 4.

Aftab Ahmad Khan for Respondents Nos.7 and 8

Shehzad Jehangir for Respondent No. 11.

Dates of hearing: 15th and 16th September, 1997

JUDGMENT
IHSAN-UL-HAQ CHAUDHRY, J.--It is proposed to decide I.C.As. Nos.
167/97, 178/97, 179/97, 256/97 and 316/97 through single
judgment as the same have been filed by the parties against the
same judgment.

2. The relevant facts are that Pakistan Chest Foundation (Regd.)

filed W.P. No. 14433 of 1994 against three manufacturers of
different brands of cigarettes, Federation of Pakistan through
Secretary, Ministry of Information and Broadcasting and 7 others,
including the advertisement agencies of P.T.V. and Pakistan
Broadcasting Corporation. It was pleaded that the smoking is
injurious to health and mostly people at young age start smoking as
they are fascinated and tempted to smoking by the colourful
advertisements and attractive adds managed by the manufacturers
of cigarettes through electronic media. It was prayed that the
broadcasting and telecasting of advertisements permitting sale of
cigarettes and sponsorship of programmes displaying commercials
banners of the cigarette companies by Pakistan Radio and
Television are illegal and without lawful authority and the same
should be banned. The petition was contested by the respondents.
The same was accepted after lengthy hearing vide short order,
dated 21-3-1997 while the detailed judgment, dated nil was written
and signed subsequently. Three cigarette companies namely,
Pakistan Tobacco Company Ltd., Lakson Tobacco Company Limited
and R.J.R. Eynolds Tobacco International S.A., filed I.C.A.
Nos.167/97, 179/97 and 316/97 respectively while the fourth I.C.A.
No.178/97 was filed by Pakistan Television Corporation Limited and
its General Manager while I.C.A. No.256 of 1997 was filed by the
writ petitioners mainly objecting to the directions contained in
paras.10(b) and 10(c) of the short order. All the appeals were
admitted to hearing. Notice was issued to the respondents who
have appeared.

3. The learned counsel for the appellants in I.C.A. No. 167 of 1997
moved an application that the appeals were liable to be accepted
on the short ground as there was no legal judgment passed by
learned Single Judge in Chamber. It was added that the learned
Single Judge retired from service on 3-4-1997, while the detailed
reasons were recorded and signed much after his retirement. In this
behalf, learned counsel has referred to application, dated 20-5-1997
for inspection of the file which was returned by the office with the
remarks that the file was still in the Court of Muhammad Aqil Mirza,
J. Therefore, it was clear that the judgment was not written and
signed till that date. It was argued that the judgment is defined in
section 2(9) of C.P.C. and the short order did not include reasons,
therefore, it was not a judgment, while the so-called detailed
judgment was written by the learned Judge in Chamber much after
his retirement, therefore, it was no judgment in the eye of law. The
learned counsel in this behalf referred to Qazi Mehar Din (deceased)
v. Mst. Murad Begum and others PLD 1964 SC 446; Nazar Abbas
Khan, etc. v. Government of Pakistan etc. PLD 1981 Lah. 237 and
Mirza Abdul Hameed and others v. Member, Board of Revenue-II
1986 SCMR 257.

4. Mr. Shahzad Jahangir, Advocate in I.C.A. No.316 of 1997 adopted

the above arguments, while Mr. Aftab Ahmad Khan, Advocate, in
I.C.A. No.178 of 1997 went on to refer to the judgment of Karachi
High Court reported as PLD 1982 Karachi 250 besides relying on the
judgments referred to by Mirza Mahmood Ahmad, Advocate.

5. Kh. Saeedu-uz-Zafar, learned Deputy Attorney-General, argued

that the principles of law about the judgments argued by the
learned counsel for the appellants is nor applicable to the present
appeals. It was added that the learned Single Judge noted the
arguments, recorded the conclusions and issued the directions in
the short order, therefore, the same is to be treated as complete
judgment and the so-called detailed judgment issued subsequently
may be ignored. The learned Deputy Attorney-General argued that
the reasons have also been given in para.8 at pages 8 and 9,
therefore, short order is a complete judgment in itself. It was added
that in any case it cannot be presumed that the detailed judgment
was written and signed by the learned Judge after his retirement. In
this behalf, he referred to the Pakistan Shipping Corporation and
another v. Rustam F. Cowasjee and others 1989 SCMR 1332.

6. Mr. A. Karim Malik, Advocate appearing for the writ petitioners

argued that it is a usual practice of the superior Courts that the
detailed judgments are written subsequently. It was added hat the
short order which was spread over 12 pages was a complete
judgment in itself and the objection raised on behalf of the four
appellants is ill-founded and unsustainable. It was argued that the
learned Single Judge in Chamber noted the arguments advanced on
behalf of the parties, opinion of experts, referred to reports and
then he recorded his conclusions in para.9 which are, in fact, his
reasoning for the judgment and it was thereafter that the directions
were issued, therefore, the short order is a complete judgment and
appealable. In this behalf, he referred to Haji Rais Ahmed v. Aslam
1991 CLC 602.

7. The learned counsel for the appellants while summing up the

arguments submitted that the arguments advanced on behalf of the
respondents-writ petitioners have been raised in utter disregard of
the text of the two orders of the learned Single Judge. It was added
that the detailed judgment was even not available at least for four
dates fixed in the appeals. The learned counsel in this behalf
specifically referred to order, dated 24-4-1997 in I.C.A. No-256 of
1997 in addition to his inspection application. It was argued that the
respondents have not pleaded categorically and clearly that the
detailed judgment was written and signed by the learned Single
Judge before his retirement. On the other hand, the appellants have
clearly shown that the same was written afterwards. The learned
counsel in the end referred to the judgment in the case of Hussain
Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD
1970 SC 1 to argue that C.P.C. is applicable to the proceedings in
the constitutional petitions.

8. We have given our anxious consideration to the arguments of the

learned counsel for the parties, gone through the record, relevant
provisions of law and precedents referred to on behalf of the
parties. The first question for determination is whether the short
order, dated 21-3-1997 is a judgment in the eye of law or not? Mirza
Mahmood Ahmad, Advocate argued that it was no judgment in the
eye of law because the reasons for the decision were not
incorporated in the same. He has referred , in this behalf, to the
judgments in the cases of Hussain Bakhsh and Haji Rais Ahmed
(supra).

9. The learned Deputy Attorney-General as well as Mr. A. Karim

Malik, Advocate in fact have no cudgel with the legal proposition
that an order to attain the status of judgment should contain the
reasons on which the conclusions were based but they tried to meet
the preliminary objection with the submission that this principle was
not attracted in the present appeals. The learned Deputy Attorney-
General argued that the reasons were recorded in para.8, pages 8
and 9 starting with the following words:-

"A few good reasons for supporting a tobacco advertising ban are
given hereunder: ... ... ... ... ... ... ... ... .. ... ... ... ...... .

But the perusal of the judgment shows that these are not the
reasons of the learned Single Judge in Chamber but this is, in fact,
the reproduction of the views of the World Health Organization
which started from the bottom of page 6 and ended at page 9. The
arguments of Mr. A. Karim Malik, Advocate were slightly different.
He referred to para. 9, pages 9 to 11, to argue that the learned
Single Judge has given the reasons in the short order as well. The
argument is again misconceived because these are only the
conclusions tabulated by the learned Single Judge in Chamber
without giving the reasoning on the basis of which these
conclusions were arrived at.
10 Now coming to other factors. the learned Single Judge himself
has styled the order, dated 21-3-1997 as short order as is clear
from the following expressions appearing at the end of para. 1:-

.. . . . . ... ... .. . is decided by the short order. "

And thereafter at the end of para. 7 following remarks were made:-

. ... ... ... ...The full account of the contentions raised by the learned
counsel for the parties shall be dealt with in the detailed judgment."

This is not all. Again para. 44 at page 82 of the detailed order starts
as under

"44. The above are the detailed reasons in support of the short
order dated 21-3-1997 whereby the writ petition has been accepted
with the following directions:

11. The order dated 21-3-1997 is without any reason in favour of

the relief granted and declarations made, therefore, it cannot be
treated as judgment in the eye of law. The High Court although also
exercises civil jurisdiction but itself is not a Civil Court. The C.P.C.
regulates all civil proceedings, including proceedings under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973
relating to civil matters which governed by the provisions of C.P.C.
other than those are specifically excluded. In this behalf, reference
can be made to judgment in the case of Hussain Bakhsh (supra).
The judgment has been defined in section 2(9), C.P.C. as under:-

"(9) "judgment" means the statement given by the judge of the

grounds of a- decree or order: "

The contents of the judgment have been dealt under Orders XX and
XLI, C.P.C. The judgment comes into existence after the same has
been reduced into writing and signed by the Presiding Officer. The
contents of the judgments are contained in rule 4(2) of Order XX,
C.P.C. The same reads asunder:-

"Judgments of other Courts.--(2) Judgments of other Courts shall

contain a concise statement of the case, the points for
determination, the decision thereon, and the reasons for such
decision. "

The most important ingredient of a valid judgment is the reasons or

grounds for decision because the validity of the judgment in the
higher forum is to be seen from the reasoning and the same is to be
challenged by the aggrieved party again with reference to the
reasons. In other words, the aggrieved party is to attack the
reasoning of the judgment in appeal and not the narration of the
facts. The conclusions arrived at by the Court will not be binding
without reasoning, therefore, the Courts insist that even in ex parte
judgments reasons should be clearly given. We may refer to the
judgment in the case of Kalu Sarang and others v. Mt. Abedannessa
Khatun AIR 1926 Cal. 1221. The matter can be looked from another
angle, namely, that it is a cardinal principle of justice that justice
should not only be done but should be seem to have been done.
The reasoning is also necessary to satisfy this most important
principle of dispensation of justice. The Court acts with material
irregularity and illegality if it fails to record reasons in support of its
conclusions. The accumulative effect of section 2(9), Order XX, Rule
4 and Order XLI, Rule 31, C.P.C. would be that decision by a Court to
be termed as judgment must be based on reasons and failure to
comply with this requirement would render the judgment nullity and
unsustainable. The Hon'ble Supreme Court has noted the
ingredients of a valid and legal judgment with reference to the
provisions of law in the case of Raja Muhammad Afzal v. Ch.
Muhammad Altaf Hussain and others 1986 SCMR 1736. The
relevant portion reads as under:-

" 'Judgment' has been defined in section 2, clause (9) of the Civil
Procedure Code as 'judgment' means 'the statement given by the
Judge of the grounds of a decree or order' and Order has been
defined in clause 14 of the same section as 'formal expression of
any decision of a Civil Court which is not a decree'. Further, Order
XX, Rule 4, sub-rule (2) prescribed that judgment of Courts other
than the Court of a small causes 'shall contain a concise statement
of the case, the points for determination, the decision thereon, and
the reasons for such decision' ... ... .. ... '

Reference is also made to the judgment in the case of Mst. Fatima

v. Khuda Bux and others PLD 1959 (W.P.) Lahore 826. The relevant
portion reads as under:-

"31 . ... ... ... ... ..Order XX, Rule 4, C.P.C. provides that judgments of
Courts other than a Court of Small Causes shall contain a concise
statement of the case the points for determination, the decision
thereon and the reasons for such decision. Similarly Order XLI, Rule
31, C.P.C. provides that a judgment of the Appellate Court shall
state--

"(a) the points for determination;

(b) the decision thereon; and

(c) reasons for the decision

The reasons for the decision on the points involved in the
determination of an appeal must of course be based on the
evidence on the record and the provisions of law applicable to them
. ... ... ... "

Now we refer to the judgment in the case of Muhammad Siddiq v.

Syed Ali Shah and another PLD 1976 Lah. 293. The relevant portion
reads as under:-

" ... ... ... ...the learned counsel for the parties have appeared and
they agree that in the absence of the detailed order the short
orders cannot be

said to have disposed of the suits. I have also considered this

matter on legal plane. It is well-settled that when a Civil Judge
decides a case without giving reasons in the judgment, he acts with
material illegality and irregularity in the exercise of jurisdiction
vested in him by law. See Muhammad Arif and others v. Muhammad
Ishaq and another AIR 1937 Lah. 352. In-Mollah Ejahar Ali v.
Government of East Pakistan and others PLD 1970 SC 173, where
the order was 'the application is rejected as there is no substance in
it', the Supreme Court observed that:

There is no doubt that the High Court's order which is unfortunately

perfunctory gives the impression of a hasty off-hand decision which,
although found to be correct in its result, is most deficient in its
context. If a summary order of rejection can be made in such terms,
there is no reason why a similar order of acceptance saying, 'there
is considerable substance in the petition which is accepted', should
not be equally blessed. This will reduce the whole judicial process to
authoritarian decrees without the need for logic and reasoning
which have always been the traditional pillars of judicial
pronouncements investing them with their primary excellence of
propriety and judicial balance. Litigants who bring their disputes to
the Law Courts with the incidental hardships and expenses involved
do expect a patient and a judicious treatment of their cases and
their determination by proper orders. A judicial order must be a
speaking order manifesting by itself that the Court has applied its
mind to the resolution of the. issues involved for their proper
adjudication. The ultimate result may be reached by a laborious
effort, but if the final order does not bear an imprint of that effort
and on the contrary discloses arbitrariness of thought and action,
the feeling with its painful results, that justice has neither been
done nor seems to have been done is inescapable. When the order
of a lower Court contains no reasons, the appellate Court is
deprived of the benefit of the views of the lower Court and is unable
to appreciate the processes by which the decision has been
reached.

The same is the law contained in Order XX read with section 33 of

the Code of Civil Procedure. In the face of the aforesaid legal
position, I hold that the learned Civil Judge acted with material
irregularity and illegality in the exercise of his jurisdiction by not
writing the detailed reasons with reference to which he passed the
short orders. As a matter of fact, even if the short order is a
judgment or a part of a judgment, then it is incomplete as its
corresponding part, which was to be separately written, was not
written at all. The short orders or judgment on the peculiar facts
and circumstances of these cases are thus not well sustained and
are a nullity ... ... ... ... ... ... ..

We may also refer to the judgments in the cases of Ghulam

Rahullah Khan v. Amir Sher Bahadar Khan and 142 others 1990 CLC
1883; Haji Muhammad Shaft v. Custodian, Evacuee Property,
Muzaffarabad acid 3 others 1989 CLC 222; Government of N.-W.F.P.
and 2 others v. Shah Alain 1989 CLC 1542; Haji Hayat Gul and 2
others v. Mufti Ghazi Khan and 2 others 1989 CLC 2372; Mistri
Muhammad Hassan v. Haji Said Muhammad and another 1986 CLC
1241; Sub. (Retd.) Muhammad Karim and another v. Abdul Rashid
and others 1981 CLC 71; Haji Abdul Baqi and another v. Muzaffar Ali
Khan and another PLD 1978 Quetta 56; Abdul Ghani v. Haji Saley
Muhammad PLD 1960 (W.P.) Kar. 594; M/s. Kuldip Oil Industries Ltd.
v. Ch. Pratap Singh AIR 1959 Allahabad 505; Sabharaj and others v.
Mahesh Narain-and others AIR (35) 1948 Oudh 27; Muhammad Arif
and others v. Muhammad Ishaq arid another AIR 1937 Lah. 352;
Harbhagwan and others v. Ahmad and others AIR 1922 Lah. 122
and Kamat v. Kamat and another 8 ILR 368 on this. issue.

12. The next question for determination is whether detailed order

was made and signed by the learned Single Judge in Chamber
before his retirement or afterwards? I.C.A. No. 167 of 1997 came up
for hearing on 27-3-1997 and it was noted that the details of the
judgment of the learned Single Judge were not available.
Thereafter, on 24-4-1997 in I.C.A. No.256 of 1997 the learned
Division Bench noted that whether in the absence of detailed
reasoning the short order can be considered in law to be a
judgment disposing of the case while in the next para. of the same
order the request of Mr. A. Karim Malik, Advocate was noted and
opportunity allowed to enquire as to whether, in fact, learned Single
Judge had recorded the detailed reasonings or not? The office was
also directed to submit a report on this aspect of the matter.
13. Mr.A. Karim Malik, Advocate very candidly submitted that
nothing can be definitely said as to when the detailed reasons were
recorded. The office has not submitted the report. However, the
report made on the inspection application of Mirza Mahmood
Ahmad, Advocate, by the office as late as 20-5-1997 reveals that
the file was in the Court of Mr. Justice Muhammad Aqil Mirza. There
was no purpose in keeping the files by the staff in the Court Room
after the learned Single Judge in Chamber retired on 3-4-1997. The
known practice is that after a learned Judge retires or relinquishes
the charge to assume some other office the files aye forthwith
returned to the office because with the retirement or
relinquishment of the office the Court ceases to exist. This is not all.
The learned Judge admittedly retired on 3-4-1997 and when the
learned Division Bench passed order on 24-4-1997 the detailed
reasons were not available. The practice of processing and fixing
the I.C.A. is that the original file is tagged with the I.C.A. file,
whereas in this case the learned Division Bench was asking for the
detailed reasons but the same were not forthcoming, therefore, we
have no doubt whatsoever in our mind that the detailed reasons
were recorded much after 3-4-1997. The learned Single Judge
neither could legally record any such reasons nor could sign the
same as Judge of this Court after 3-4-1997. We may refer here to
the following judgments relied in support of the objection:-

"(i) Oazi Mehar Din (deceased) (supra): This objection was taken in
the High Court that the judgment which was pronounced by the
learned Single Judge had been written and signed by him after he
had handed over charge and had become a Minister of Bahawalpur
Estate. It was, therefore, urged that the same judgment was not a
valid pronouncement. The legal objection was accepted and order
of the Division Bench was set aside with the result that the first
appeal in the High Court was deemed pending. The relevant portion
of the judgment reads as under:-

' ... ... ... ... The cases, therefore, in which judgments written by a
person after transfer or on leave, were held to be valid, would not
be sufficient authority for the view that a judgment written by a
Judge who had ceased to hold his office would also be immune from
exception. Such a view has potentialities of great mischief and if by
reasonable construction of the statutory provision it could be
avoided, the result would most probably be in conformity with the
intention of the Legislature. I am, therefore, disposed to think that
the narrower construction of Order XX, Rule.2, C.P.C. should be
adopted and it should be held that a Judge who has become functus
officio, after being relieved of his office, should not be allowed to
have anything to do with the judicial work of the Court over which
he previously presided . . . . . . . . . . . "
(ii) Mirza Abdul Hameed and others (supra): Constitutional petitions
were heard by the then Chief Justice, High Court of the Balochistan,
Quetta but signed the judgments while acting as Governor of the
Province and got the same announced through another learned
Judge. The Hon'ble Supreme Court set aside the judgment and
ordered rehearing, of all the Constitutional petitions. The relevant
portion of the judgment reads as under;-

'7 . ... ... ...These provisions leave no manner of doubt that the Chief
Justice of a High Court when he has been appointed and takes over
the functions of the Governor of the Province vacates the office of
the Chief Justice. After vacating the office of the Chief Justice, the
Governor could not discharge the functions of that office. The
signing of a judgment, the act of imparting to written words the
finality and efficacy of a legal instrument, its pronouncement in
open Court are all functions dischargeable only by a Judge and by
none else. The Chief Justice, while acting as Governor of the
Province, having for the time being vacated the judicial office, could
not perform that. function nor get it performed through another
Judge of the High Court.'
(iii) Nazar Abbas Khan etc. (supra): The broad question in this case
was whether a Judge, who was no longer attached to the High Court
can write or sign a judgment and whether the result was orally
announced or reserved at the time of hearing. The Division Bench of
this Court examined the case-law as under:-

'17. Again, as stipulated in the High Court Rules and Orders, a

judgment is to be delivered by the Judge or Judges who,heard the
case and it has to be signed and delivered before it becomes
operative. In Rukan Din v. Hafiz-ud-Din PLD 1962 Lah. 161 a
Division Bench of this Court held that a judgment pronounced orally
by the High Court without any note being signed or pronounced can
be subsequently altered after rehearing. In Mahboob Ali v. Syed
Qamar Ali 1972 SCMR 109 the. oral acquittal of the accused by a
Magistrate who died without writing any judgment, was held to be a
nullity. In Muhammad Bashir v. Muhammad Hussain 1977 PCr.LJ 526
the judgment typed out but neither corrected, signed nor delivered
by the Presiding Officer purporting to have disposed of the matter
was held to be void.

19 The Courts of foreign jurisdiction have also taken the same view.
Reference be made to Corpus Juris Secundum, Vol. 48 at p.1011,
section 47 states:-

'The elevation of a Judge to a higher Court terminates his right to

exercise any of the functions of the Judge of the lower Court. The
jurisdiction of a Judge which is lost by his temporary appointment as
member of an appellate Court is restored on revocation of such
appointment.'

Concerning the property of office it is recorded:-

'It is the duty of a Judicial Officer on the expiration of his term to

surrender to his successor the property of the office which--the law
commits to his custody. The duty is merely ministerial. The person
holding the certificate of election being prima facie the Officer is
prima facie entitled to the records of the office in advance of the
result of an election contest.'

Section 55 of the same Volume at p.1018 says:-

'A person appointed to fill the vacancy in the office of a Judge is

usually endowed with the powers that belong to the occupant of the
office. During the period of his incumbency he is considered a Judge
de jute.'

Under Note 60 at p.1019 it is recorded:

'Trial Judge's death after making oral announcement of views at

conclusion of trial caused mistrial and succeeding Judge could not

properly enter judgment on basis of oral announcement'."

And thereafter answered the above legal question as under:-

"21. In view of the above, the oral pronouncement, or written

opinions sent in after the learned Judges stood elevated to the
Supreme Court, either as acting or ad hoc Judges, are no judgments
in the eye of law. The Writ Petitions 1559 and 1560 have rather
been sent back as undecided, for rehearing. All the above cases
shall, therefore, be deemed to be pending decision in this Court.
However, if record of any such cases are not available their files
may be reconstructed in accordance with law."

The judgment in the case of the Pakistan Shipping Corporation and

another (supra) relied by the learned Deputy Attorney-General is
not relevant because in that ease the assumption that the judgment
was written by the learned Chief Justice after having left the Court
was based on the date appearing on the blue slip., which was
written by a functionary associated with the Court while certifying
that the judgment was approved for reporting. The same is the
position of the judgment of this Court reported as Sh. Abdul Haq &
Sons Ltd. v. The Punjab Industrial Development Board, Lahore and 3
others PLD 1991 Lah. 427.

14. The upshot of the above discussion is that the short order dated
21-3-1997 is no judgment in the eye of law because it did not
contain the reasons on the basis of which the decision was made,
while the detailed order having been passed by the learned Single
Judge after his retirement on 3-4-1997 is legally no judgment as
well. The result is that this appeal is accepted, the two orders are
set aside and W.P. No. 14433 of 1994 would be deemed to be
pending for decision.

No order as to costs

A.A./P-23/L Order accordingly