1. ANWARUL HAQ, C. J.-Before addressing arguments on merits in this petition under Article 184(3) of the Constitution, seeking to call in question the detention, under Martial Law Order 12, of Air Marshal (Retd.) Asghar Khan, Chief of the defunct Tehrik-Istaqlal Pakistan, Mr. Mahmud Ali Qasuri, learned counsel for the petitioner, raised the following points;
(a) That this matter should be heard by the same Bench as had decided the case of Begum Nusrat Bhutto v. The Chief of the Army Staff PLD 1977 SC 657, as this petition in effect seeks a review of that judgment ;
(b) that even otherwise it would be inappropriate for the present Bench of six Judges of the Supreme Court to hear this petition, as all of them are drawn from a particular region of Pakistan, and the matter in issue concerns the entire Federation ; and
(c) that Mr. Sbarifuddin Pirzada, the learned Attorney-General for Pakistan, has disqualified himself from appearing in this case as an Advocate on behalf of the Federal Government or even in his capacity as Attorney-General, for the following reasons ;
(i) that be is holding another political office under the Government, namely, Minister for Law and Parliamentary Affairs, in which capacity he cannot appear before the Courts of law ;
(ii) that three of the Judges of this Bench were appointed to the Supreme Court during his tenure as Law Minister, and, therefore, it is not appropriate that he should appear before them as an Advocate ; and
(iii) that in his capacity as Law Minister of the Federal Government be is in a position to initiate disciplinary proceedings against the Judges of the Supreme Court, and for this reason as well it is not proper for him to appear in this case before this Court.
2. After hearing Mr. Mahmud Ali Qasuri and Mr. Sharifuddin Pirzada, we have formed the view that there is no merit in these submissions, which are entirely misconceived, and should never have been raised by a counsel of the eminence and standing of Mr. Mahmud Ali Qasuri.
3. It is the undisputed privilege and duty of the Chief Justice, whether of a High Court or of the Supreme Court, to constitute Benches for the hearing and disposal of cases coming before his Court ; and no litigant or lawyer can be permitted to ask that his case be heard by a Bench of his choice. Even though the present petition may involve references to the decision of this Court in the case of Begum Nusrat Bhutto, mentioned by Mr. Mahmud't Ali Qasuri, yet this is not a petition for review of the judgment in that case. As far as the question of interpretation of that judgment is concerned, every Bench of this Court is competent to undertake that exercise; and to suggest otherwise amounts to an uncalled for reflection on the ability and capacity of those Judges who did not sit on the original Bench.
4. The suggestion that this Bench should not hear this case as all the Judges comprising it are drawn from a particular region of Pakistan, is most regrettable, and even mischievous. The Judges of the superior Courts, and particularly of the Supreme Court, do not think on regional lines, nor do they decide matters on parochial and provincial considerations. When we sit on the Bench of the highest Court of the land, we are constantly mindful of the fact that we must think, live and act in terms that we are Pakistanis, and cease to think and act as Panjabis, Sindhis, Pathans or Balochis.
5. Ever one of us is fully conscious of the great responsibility that falls upon us do even-handed justice to all citizens of Pakistan, irrespective of their origin or domicile. Any suggestion or insinuation to the contrary mug` be condemned in the strongest terms, and cannot be countenanced, even if it comes from a gentleman of Mr. Qasuri's standing at the bar.
6. The simple fact is that this petition was filed at Lahore, and it was fixed for preliminary hearing immediately after the Eid-ul-Azha holidays before all the six Judges, who were to be available at Lahore according to the regular roster of the Court as previously notified before the filing of this petition. Any attempt to distort these facts for a short-sighted ulterior purpose cannon but be deprecated.
7. As to the competence of Mr. Sharifuddin Pirzada to appear before this Court, we were informed that he was appointed as Attorney-General for Pakistan on the 7th of July, 1977, that is, two days after the promulgation of Martial Law, and has continued to hold this position during successive changes that have been made by the Chief Martial Law Administrator in the composition of the Federal Government. On the 14th of January, 1978, a Council of Advisors was established, Mr. Sharifuddin Pirzada was included as one of the Advisors in his capacity as Attorney-General. A cabinet of Federal Ministers was then constituted on the 8th of July, 1978, under President's Order No. 9 of 1978, and Mr. Sharifuddin Pirzada was again continued as Attorney-General with the status of a Federal Minister. Finally, the cabinet was reconstituted on the 24th of April, 1979, and Mr. Sharifuddin Pirzada was included in it as Attorney-General, even though at that time he was away to the United States for medical treatment. On the 31st of May, 1979, Mr. Pirzada was allotted the portfolio of Law and Parliamentary Affairs in addition to his duties as Attorney-General. Mr. Pirzada submitted that all these appointments had been made by the President and Chief Martial Law Administrator not under the provisions of the 1973 Constitution, but independently in the nature of interim arrangements, with the result that his capacity as Attorney-General remained unaffected.
8. Mr. Mahmud Ali Qasuri referred us to Article 207 of the Constitution in an effort to show that as a person appointed as Attorney-General had to be one who was qualified for appointment as a Judge of the Supreme Court, therefore, he could be deemed to be under the same disability as has been placed by the Constitution on a Judge of the Supreme Court in the matter of accepting another assignment carrying the right to remunera--tion. The argument is clearly misconceived, as merely prescribing a certain qualification for appointment as Attorney-General for Pakistan does not mean that he would be governed by the same disability as applies to a Judge of the Supreme Court. The correct position is that the Attorney---General functions under Article 100 of the Constitution, which gives him the right of audience in all Courts and Tribunals in Pakistan in the performance of his duties. Clause (3) of the same Article also contemplates that it shall be the duty of the Attorney-General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Federal Government. It appears to us, therefore, that irrespective of Mr. Sharifuddin Pirzada's submission that he is functioning as the Federal Law Minister not under the 1973 Constitution, but under an ad hoc arrangement made by the President and Chief Martial Law Administrator, the Attorney-General could be required to undertake extra duties in terms of Article 100 of the Constitution and for that reason alone he would not cease to be the Attorney-General, nor would he lose his right of audience in all Courts and Tribunals of Pakistan. It is, therefore, erroneous to suggest that by being assigned the extra functions of looking after the portfolio of Law and Parliamentary Affairs, Mr. Sharifuddin Pirzada stands disqualified from appearing in this Court as Attorney-General.
9. In any case, it should not be overlooked that Mr. Sharifuddin Pirzada is present today before us in pursuance of a notice issued by this Court to him to assist us in his capacity as the Law Officer of the Court at the preliminary hearing of this petition. It is, accordingly, hardly the occasion to object to his presence before the Court.
10. The other reasons given by Mr. Mahmud Ali Qasuri for saying that it is not proper for Mr. Sharifuddin Pirzada to appear before this Court are, we regret to say, highly inappropriate, and not befitting the dignity and position which Mr. Qasuri occupies in the legal profession. By making such submissions he has tried to insinuate that the Judges of the Supreme Court would not be able to do justice in the matter as either they would feel be holden to Mr. Sharifuddin Pirzada for their appointment, or they would feel intimidated in his presence because of his power to initiate disciplinary proceedings against them-assumptions which are unworthy of the learned counsel and unfair to the Judges of this Court. We are all bound by our oath of office to do justice without fear or favour, and it matters little whether the person appearing before us combines in himself the offices of Attorney-General and the Law Minister or, indeed, any other offices of the realm. We strongly deprecate the insinuation made by Mr. Mahmud Ali Qasuri, and would like to express the hope that he made these submissions without fully realising their mischievous implications.
11. After these points had been disposed of, Mr. Mahmud Ali Qasuri stated that his client had already authorised him to file a petition before the Lahore High Court, which was with him ready to be filed; and that some other petitions were likely to be instituted in the other three High Courts as well, raising practically the same questions as were being agitated it this petition. He submitted that, in the circumstances, he would request that the hearing of this petition may be adjourned, and he may be permitted to revive the same as and when expedient. After some discussion at the Bar, and after consultation with his colleagues and his client, he informed us that he would like to withdraw this petition with permission to file a fresh one, if necessary.
12. In view of the request made by Mr. Mahmud Ali Qasuri, this petition is disposed of as withdrawn, with permission to file a fresh one, if so advised.
13. Before parting with this case we cannot help remarking that we have been left wondering as to what was the compulsion for Mr. Mahmud Ali Qasuri to cast unwarranted reflections on the compulsion, independence, impartiality and competence of this Bench to deal with this matter; or to dispute the competence of Mr. Sharifuddin Pirzada to appear before us a Attorney-General, when his real intention all along was to request for an adjournment, or withdrawal, of this petition.