P L D 1981 Lahore 237

Before Shameem Hussain Kadri, Actg. C. J. and

Gul Muhammad Khan, J

NAZAR ABBAS KHAN ETC.-Petitioners

versus

GOVERNMENT OF PAKISTAN ETC.-Respondents

Writ Petition No. 1559 of 1974, decided on 11th February, 1981.

(a) Civil Procedure Code (V of 1908)-

O. XX, rr. 1, 2 & 3-Constitution of Pakistan (1973), Art.'202- and High Court
(Lahore) Rules and Orders, Vol. V, Ch. 4-H, rr. 1, 2 & 3 Judgment-Can be recorded
only by a Judge of Court, i.e. while presiding over Court and not after he ceases to be
a Judge-Judgment recorded before Judge ceases to preside over Court-Second Judge
or other Judges of such Bench still presiding over Court may proceed to announce
same -Failing such pronouncements same to be considered mere minutes or opinion
and not judgment.-[Judgment].

Hussain Bakhsh v. Settlement Commissioner P L D 1970 S C 1 ref.

(b) Civil Procedure Code (V of 1908)-

0. XX, rr. 1, 2 & 3-Constitution of Pakistan (1973), Art. 202 and High Court (Lahore)
Rules and Orders, Vol. V, Ch. 4-H, rr. 1, 2 & 3 Judgment=Judge already ceased to be
a Judge of High Court-No judgment can be received from such Judge.-[Judgment].
(c) Constitution of Pakistan (1973)-

-- Arts. 181, 182, 260 & 196-High Court Judge whether appointed to act temporarily
as Judge of Supreme Court or appointed to attend sittings of Supreme Court as ad hoc
Judge-Judge of Supreme Court having same powers and jurisdiction as permanent
Judge of Supreme Court-Judge appointed to act as Chief Justice-Held : Chief Justice
of Court having same powers and jurisdiction as permanent Chief Justice-Any one of
such Judges elevated from High Court deemed to have severed his connection from
High Court whether permanently or temporarily, and disabled to perform functions of
Judge of High Court till his appointment in Supreme Court ended and he rejoins High
Court.

Abrar Hassan's case P L D 1976 S C 315; Mr. Zuljfkar Ali Bhutto v. State P L D
1978 S C 40 and Federaion of Pakistan v. Saeed Ahmad Khan P L D 1974 S C 151
ref.
(d) Civil Procedure Code (V of 1908)-

0. XX, rr. 1, 2 & 3-Constitution of Pakistan (1973), Art. 203 and" High Court
(Lahore) Rules and Orders, Vol. V, Ch. 4-H, rr. 1, 2 & -3 Judgment-Has to be
delivered by Judge or Judges bearing case and to be signed and delivered before it
becomes operative-Oral pro nouncement or written opinions sent in after Judge
concerned stood elevated to Supreme Court either as acting or ad hoc Judge, held, no
judgment in eye of law.-[Judgment].
Rukan Din v. Hafiz-ud-Din P L D 1962 Lah. 161; Mahboob Ali v. Syed Qamar All
1972 S C M R 109; Muhammad Bashir v. Muhammad Hussain 1977 P Cr. L J 526;
Nisar Ahmad v. Presiding Officer P L D 1976 Lab. 1162; Muhammad Ayub Khuhro
v. Pakistan P L D 1960 S C 237; Gulam Mustafa v. State 1973 P Cr. L J 389; Qazi
Mehar Din v. Mst. Murad Begum P L D.1964 S C 446; Corpus Juris Secundum, Vol.
XLVIII, p. 1011 and American Jurisprudence, 2nd Edn., Vol. XLVI ref.

Mian Mahmud Ali Kasuri (on 3-2-81) and Rao Muhammad Yusuf for Petitioners.

Irshad Hassan Khan, Deputy Advocate-General assisted by Mian Bashir Ahmad,

Date of hearing : 3rd and 7th February, 1981.

JUDGMENT

GUL MUHAMMAD KHAN, J.--This order will also dispose of W. P. 1560 of 1974,
Intra-Court Appeals Nos. 75, 76, 133 of 1977 and 150 Criminal Miscellaneous No.
17-M of 1981. The question involved in all these cases is identical. In a number of
writ petitions, civil and criminal matters, involving questions about life liberty,
property and public functions heard in the last about two years, by various Benches of
this Court, judgments were either reserved or decisions announced orally, but no
judgments written and signed. In some cases judgments were received after one or
the other learned Judge was elevated to the Supreme Court or ceased to .be a Judge.
These matters are representative of those cases.

2. In W. Ps. 1559 and 1560 an oral announcement accepting both the petitions was
made on 20th March, 1979. No judgment was written, signed and filed. According -to
an Office note these two and other petitions were returned by reader of the Court with
remark that they may be reheard. In I. C. As. Nos. 75, 76, 133 and 150 the judgments
were reserved by a Division Bench. Meanwhile, one of the learned Judges of the
Bench was elevated to the Supreme Court either as an ad hoc or acting Judge. The
judgments were received from them thereafter. In Criminal Mis cellaneous 17-M of
1981, a case (Criminal Miscellaneous 992-M of 1978) arose out of a complaint filed
in the Court of Session Judge under section 302/34, P. P. C. This case was referred by
a learned Single Judge to and was ultimately take up by a Bench which orally
dismissed the same on 1st July, 1979. The petitioners thereafter applied for a copy so
as to apply for leave to appeal to the Supreme Court but could not get it, in view of
the office report that the former Chief Justice who was the senior member of the
Bench had the case with him and had not sent the judgment and the record back.
Meanwhile, one of the two learned Members of the Bench has ceased to be a Judge of
the High Court while the other has been elevated as acting Judge of the Supreme
Court. The petitioners, therefore, applied under Criminal Miscellaneous 17-M of
1981, praying for stay of murder trial . proceedings before the Additional Sessions
Judge, Sheikhupura.

3. The broad question arising in the cases is whether a Judge who is no longer
attached to the High Court can write or sign a judgment, whether the result had been
orally announced or judgment reserved at the time of hearing ? Mr. Mahmud Ali
Kasuri, the learned counsel for the petitioners in W. Ps. 1559 and 1560 had argued
that an oral announcement of judgment is a judgment of the Court and only reasons
need be supplied. He suggested two alternatives in that regard; the Court should
either await return of the learned Judges to record their reasons or the judgment be
written by another Judge or Judges of this Court to bring about the same result as
announced originally. He, however, could not support his contention by any
provision of law or case-law.

4.. Mr. Mumtaz Hussain, Advocate, who appeared for appellants in I.-C. A. 133-77,
submitted that there is no distinction between an ad hoc, acting or a permanent Judge
of the Supreme Court in so far as their powers or jurisdiction . is. concerned. He
referred to Articles 177, 181 and 182 to support his contention. He -also relied on
Articles 196 and 260 of the Constitution to reinforce his argument. He cited Chapters
4-G and 4-H, Part II, Vol. V of the High Court Rules and Orders in the same regard
and relied on a number of judgments which will be discussed later.

5. Mr. Irshad Hassan Khan, Deputy Attorney-General reiterated the arguments of Mr.
Mumtaz Hussain and supported the same by a number of precedent cases as will be
discussed titer. He said specifically that practically an acting, ad hoc and a permanent
Judge have the same status and that there is no difference or distinction between an
acting Chief Justice and Chief Justice except their tenure. He urged that any Judge of
the High Court who is elevated as a Judge of the Supreme Court in any capacity
ceases to be a Judge of the High Court either temporarily . in the case of acting. and
ad hoc appointment or permanently in-other case.

6. As said above, the questions arising in these cases are likely to affect a large
number of cases. It is true that in view of Hussain Bakhsh v. Settle ment
Commissioner (PLD 1970SC1), the Code of Civil Procedure is applicable to the writ
jurisdiction. Order XX of it concerns writing and announcement of a judgment. Order
XLIX, C. P. C., however excludes the applicability of the relevant provisions to the
High Court. Article 202 of the Constitution, on the other hand, authorises the High
Court, subject to the Constitution and law, to make rules regulating the practice and
procedure of the Court or of any Court subordinate to it. Thus the High Court Rules
and Orders would govern the situation in hand.
7: Rule I of Chapter 4-H provides that judgment in appellate jurisdic tion may be
written by the Judge in Urdu or English or delivered orally. In the latter case, a note
thereof in written or short-hand shall be taken by an Officer of the Court in
attandence for the purpose and the same shall be written out or typed in full by the
concerned Officer and submitted to the ,fudge for correction. It shall, thereafter, be
filed as the judgment of the Court. It may be observed that the writing of judgments,
its oral delivery and correcting or signing of the note to be filed as a judgment, are bo
the Judge. Under rule 2 the judgment shall be delivered in open Court either at. the
close of the case or some future date of which due notice shall be given to the parties
or their counsel.

8. According to rule 3 of the above, when an appeal has been heard by a Bench of the
Court, the written opinion of the Judges who heard the appeal but have ceased to be
attached to the Court before delivery of judgment shall, unless delivered by another
Judge of the Bench which heard the appeal be deemed to be merely minutes and not
judgment. Thus even if there is a written opinion of the Judge, i.e. written before he
ceased to be attached to the Court, it cannot be called a judgment though it may be
delivered so if the other Judge who was 'also a member of the Bench may choose to
do so. As said above, the written opinion -in some of the case were received after the
learned Judge were elevated or ceased to be attached to the Court.

9. The procedure in original civil cases is governed by Chapter 4-G. Its rule 3 is
equivalent to what has been stated in rule 1 above. Rule 5 is enquivalent to rule 2
noted above. Rule 6 is the same as rule 3 (supra). Rule 8 lays down that a
memorandum of appeal in a case in which judgment has been delivered orally, shall
be received . and filed without a copy of the judgment. It is a procedural step in the
Intra-Court Appeal just to facilitate filing of appeal but in no way validates a
judgment. Rule 9 provides that when an order is made in Court or in Chambers a note
of its purport shall be made and signed by the Judge or Judges making the order and
if the order disposes of a petition, the reasons for making it shall be stated.

10. It is, therefore, quite clear from the above that a judgment can be recordad
only by a Judge of the Court i.e. while be is presiding over the Court and not after he
ceased to be so. In an eventuality where the judgment has been recorded before a
Judge ceases . to preside over the High Court, the Second Judge or other Judges of
that Bench who still preside over that Court, if the case was heard by a Division or
larger Bench, may proceed to announce the judgment, failing which it will be a mere
minutes or opinion and not a judgment.. Be that as it may, it is quite clear that no
judgment can be received from a Judge who has already ceased to be a Judge of
the .Court. ,.

11. The question then arises as to when a Judge ceases to be a Judge of a Court. The
point came up in the case of Abrar Hussain (P L D 1976 S C 315.). In that case a
Judge of the Supreme Court was appointed as the Chief Justice of the High Court.
The question arising - for decision was whether he continued to be a Judge, of the
Supreme Court as well: The learned Judges of the Supreme Court held : .
". . . . . Invariably when. a Judge of the High Court is appointed as a Judge of the
Suprem: Court he ceases to be a Judge of the former and comes to occupy only one
office viz. the office -of a Judge of the Supreme Court.. In such a case he does not
resign from the office of a Judge of a High Court, but his conduct in accepting the
office of a Judge of the Supreme Court amounts to his resignation from the former
office. Conversely respondent No. 2 must be held to have elected to hold the office of
the Chief Justice of the High Court after having resigned from the office of a Judge
of-the Supreme Court . . . . ."

A further observation made at page 34i is:

". . :Even otherwise the holding of the two offices simultaneously will lead to
confusion for the terms and conditions of the two are . different as regards. age of
retirement, remuneration, pension, etc.

At pages 352-353 of the same report it is held :-

" . . It is common knowledge that with the exception of three or four appointments in
the . Supreme Court and its predecessor, the Federal Court, all appointments in these
Courts were made from among the sitting Judges. in the High Court each of whom
without exception took oath of new office without formally resigning judgeship in the
High Court. Yet all these years, no body has even thought of canvassing the
proposition that such Judges in the Supreme Court or as the case may be, the Federal
Court also retained judgeships in the High Court. Rather the uncontested position has
throughout been-that-each such Judge upon relinquishment of office in the High
Court and taking oath of new office severed his office in the High Court completely
and must therefore be deemed to have resigned judgeship in that Court. On a parity of
reasoning the same is the position in the instant case. Respondent No. 2 by
relinquishing his office in the Supreme Court and on taking oath of his new office
must be deemed to have resigned judegship in the Supreme Court . . . ."

This case was later approved in Zulfiqar Alt Bhutto v. State (P L D 1978 S C 40).

12. The above report of Abrar Hassan's case also distinguished at p. 353 the
appointment of a sitting Judge of the High Court as Law Secretary on the ground that
it was on an express condition that the service rendered shall be treated as actual
service and that it being at best a ministerial office was not like that of a Judge
requiring any oath of office. It was further stated that the Judges Order of 1937 arid
1970, expressly provided for temporary undertaking of function by a High Court
Judge other than those of a Judge on a request by the President on the express
condition referred to above.

13. The above observations when applied to the facts of the present case would
establish that the `ad hoc' or `Acting Judges of the Suprem Court, who do take oath of
that office, are Judges of the Supreme Court for all practical purposes,. though their
acceptance of those offices as such in view of express provisions in the Constitution,
would not amount to the resignation from the High Court as they would be entitled to
join it after their appointments in the Supreme Court are revoked or the term expire
whatever the case may be. They thus do sever their connection, but no permanently,
with the High Court. This result is further supported as discussed below.

14. Article 181 authorises the President to appoint a Judge of a High Court to act
temporarily as a Judge of the Supreme Court, if he is qualified for appointment, in
accordance with the manner, as laid down, for appoint ment of a permanent Judge of
the Supreme Court. Under Article 181(2) such an appointment shall continue in force
until it is revoked by the President. Article 182 provides for appointment of an ad hoc
Judge of the Supreme Court. It lays down that if, at any time, it is not possible, for
want of quorum of the Supreme Court, to hold or continue any sitting of the Court or
if, for any reason, it is necessary to increase temporarily the number of Judges of the
Supreme Court, the Chief Justice of Pakistan may, in writing, with the approval of the
President and with consent of the Chief Justice of a High Court, require a Judge of
that Court, qualified for appointment as a Judge of the Supreme Court, to attend
sittings of the Supreme Court, as an ad hoc Judge of the Supreme Court, for such
period as may be necessary and while so attending the ad hoc Judge shall have the
same powers and jurisdiction as a Judge of the Supreme Court.

15. Article 260 defines a `Judge' and states , that it also includes, in relation to the
Supreme Court, a person who is acting as a Judge of the Court. It will be seen in this
context that both the ad hoc as well ~ as the Judge appointed under Article 181 are
acting as Judges of the Supreme Court. Similarly, `Chief Justice' is defined to
include. the Judge acting for the time being, as Chief Justice of the Court: Article 196
provides, inter alia, that in case the Chief Justice of a High Court is unable to perform
the functions of the office due to any other cause, the President shall appoint one of
the Judges of the High Court . . . . . to act as Chief Justice. All the above provisions
therefore, make it absolutely clear that a Judge whether, appointed under Article 181
to act temporarily as a Judge of the Supreme Court or under Article 182 to attend
sittings of the Supreme Court as an ad hoc Judge are the Judges of the Supreme Court
and have the same powers and jurisdiction as a permanent Judge of that Court.
Similarly, a Judge who has been appointed to act as Chief Justice is the Chief Justice
of that Court for the time being has the same powers and jurisdiction as a permanent
Chiefjustice: Thus any one of them, if elevated from the High Court, shall b deemed
to have severed his connection therefrom, whether temporarily o permanently, as the
case may be, and shall not be able to perform the functions of a Judge of the High
Court, till his appointment in the Supreme Court comes to an end and he rejoins the
High Court. This right to revert may be equated with `lien' as known to Civil Servants
Rules and is dependent on orders to be passed by the President. It is also possible that
these Judges may be absorbed permanently in the Supreme Court and may not come
back.

16. It is to be noted that the Courts are creation of the Constitution and the law and,
therefore, the persons presiding over them can exercise only such jurisdiction as is
vested in them. Reference be made to the Federation of Pakistan v. Saeed Ahmed
Khan . (P L D 1974 S C 151) at page 165 wherein the following rule laid down by the
Court, may be quoted with advantage
(iii) The Courts are creatures of the Constitution; they derive their powers and
jurisdictions. from the Constitution and must confine themselves within the limis set
by the Constitution.
w * * tr s * * s s * * s

(ix) The Constitution has to be construed like any other document reading it as a
whole and giving to every part thereof a meaning consistent with the other provisions
of the Constitution,

(x) As far as possible each provision of the Constitution should be construed so as to

17. Again, as stipulated in the High Court Rules and Orders, a judg ment is to be
delivered by the Judge or Judges who heard the case and itl has to be signed and
delivered before it becomes operative. In Rukan Din v. Hafiz-ud-Din (P L D 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 S C M R 109) the
oral acquittal of the accused bar a Magistrate who died without writing any judgment,
was held to be a nullity. In Muhammad Bashir v. Muhammad Hussain (1977 P Cr. L
J 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.

1.8. In Nisar Ahmed v. Presiding Ofcer (P L D 1976 Lah. 1162) it was held that a
judgment must be in writing, be announced publically and signed, and that oral
announcement was not valid or effective in the eye of law. In Muhammad Ayub
Khuro v. Pakistan (P L D 1960 S C 237 .) it was held that a judgment pronounced by
an incompetent Tribunal is void. In Ghulam Mustafa v. State (1973 P Cr. L J 389) a
Single Judge of Sind High Court held that a judgment not having been written or
dictated on the date when pronounced but dictated later was void and the sentence
and conviction stood vitiated. In Qazi Mehar Din v. Mst. Murad

Begum (P L D 1964 S C 446) at page 450 the Supreme Court held 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 oficfio, 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 . . . . ."
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 appoint ment 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 jure."

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."

20. Admerican Jurisprudence, 2nd Edn., Vol. 46, section 31 states :-

"It is the duty of a Judge whose term has expired to turn over to his successor
property of the offce in his custody, such as reports of decisions of the state Supreme
Court, which the law provides shall be distributed to certain Judges, and which are
generally held to belong to the office and not to the Judges personally."

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 riot avail able their files may be reconstructed in accordance with law.

s. A. H. Orders accordingly.