1. ANWARUL HAQ, C. J.-This order deals with the situation arising out of the continued inability of a member of this Bench, namely, Mr. Justice Waheeduddin Ahmad, to sit on the Bench owing to his indisposition.
2. The learned Judge was taken ill on the 21st of November 1978, and admitted as an indoor patient at the Combined Military Hospital, Rawalpindi, on the evening of Wednesday, the 22nd of November.
3. The hearing of these appeals was adjourned by us from time to time so as to await his recovery and return to the Bench, but unfortunately it has not been possible for him to do so yet.
4. During the period 22nd of November 1978, and the 2nd of December 1978, Mr. Justice Waheeduddin Ahmad was examined and treated by the Medical Specialists of the Pakistan Army as well as by Professor S. M. Rab and prof. Saleh Memon, from Karachi, besides Professor Doctor Iftikhar Ahmad, Principal of the Allama Iqbal Medical College, Lahore, and Doctor Mushtaq Hassan, F.R.C.P.E. Of Karachi. The last two mentioned doctors were specially requested to visit Rawalpindi as the learned Judge himself and his family desired that they should also examine him for the reason that they had been treating him at Lahore and Karachi respectively.
5. Doctor Mushtaq Hassan particularly was fully familiar with the state of health of the learned Judge as he had been looking after him for several years during Mr. Justice Waheeduddin Ahmad's stay at Karachi.
6. The position has now been thoroughly studied by us in the light of the three reports sent to us by the Medical Authorities, namely-
(a) Report, dated the 28th of November 1978, by Professor Dr. Iftikhar Ahmad ;
(b) Report, dated the 30th of November 1978, compiled by the Commanding Officer of the C. M. H. ; and
(c) Report, dated the 2nd of December prepared by Doctor Mushtaq Hassan of Karachi.
7. The report by Professor Dr. Iftikhar Ahmad states that Mr. Justice Waheeduddin Ahmad was examined by him at the C. M. H. On the 28th of November 1978, that he was suffering from Hypertension, Diabetes Mellitus and had developed a cerebero-vascular episode involving mid-brain. The report adds "considering his slow improvement it will be quite some time before he makes a complete recovery and which may be in terms of weeks or months. Ay rough estimate will be three to six months provided he does not get another episode of complication of his underlying disease.
8. He should be well advised to avoid strenuous work in future.
9. I agree with the diagnosis and line of treatment, however, I have recommended few additions: He will be fit to travel, if his general condition permits;"
10. The report submitted by the Officer Commanding of the C. M. H. Of the 30th of November 1978, reads as under :- "Hon. Mr. Justice Waheeduddin Ahmad was admitted in C. M. H. On 22nd November 1978, with a history of slurring of speech, unsteadiness of legs and seeing double. He is an old case of Hypertension as well as diabetes. He was found to have paralysis of left eye as well as weakness of limbs. He has been seen by Professors S. M. Rab and Saleh Memon of Karachi and Professor Iftikhar Ahmad of Lahore. All the three Professors agreed with us, that his Lordship, had a Cerebron Vascular Accident. The progress has been slow and today Mr. Justice Waheeduddin Ahmad still sees double on movement of his eyes, requires help of two people even to go to the toilet.
11. Our impression is that progress in this case is remarkably slow and it will take considerable time before his Lordship completely recovers. There is strong likelihood that residual neurological damage may be left permanently."
12. The report submitted by Doctor Mushtaq Hassan of Karachi, is dated the 2nd of December 1978, and has been compiled in the form of answers to certain questions posed by the Authorities of the C. M. H. The first question deals with the diagnosis and answer states "the diagnosis of C. V. A. In the mid-brain is confirmed, most probably thrombosis. The slurred speech is indicative of a lesion lower down in the brain stem, also partial 3rd palsy with slight ptosis is present in the left side".
13. The doctor adds that the line of treatment is agreed with. He would advise certain alterations in.
14. The medicines, etc. With which we are not concerned in the present context.
15. The report continues to state that "he could be discharged soon from here and taken to Karachi where he could be admitted in N.I.C.V.D. And looked after by Maj.-Gen. S. A. Syed with the help of a Neuro--physician. I could visit him there if and when he wishes. Alternatively he could be admitted in P. N. S. Shifa under my cure there. I will look into the possibility should this be necessary".
16. In answer to the third question regarding the doctor's estimate of the time required for absolute recovery, the report states that "the answer to this question is uncertain in terms of time as well as in terms of absolute recovery. Usually recovery occurs rapidly in some weeks and goes on for some months. Residual deficit could remain, though not necessarily".
17. The report then adds that the Judge would require a couple of months sick leave to recuperate his health before resuming his duties if he makes an absolute recovery.
18. And finally, the report states that any opinion as to the fitness of the learned Judge to undertake strenuous duties will depend upon monthly review of his progress.
19. On the morning of the 3rd December 1978, Mr. Justice Waheeduddin Ahmad himself telephoned to the Chief Justice and expressed a desire to be shifted to Karachi, i.e. His home town,, so that he could be with his family and be under the treatment of doctors who had been looking after him in the past. He also stated that he would like to send a letter to me in writing about his inability to sit on the Court for sometime and requested me to relieve him from the Bench. I said in reply that the Registrar of this Court will visit him and he could then dictate whatever he considers necessary. I also said that as to his shifting to Karachi, that was a matter for his Medical advisors. Thereupon he informed me that he had already arranged to leave Rawalpindi by the P. I. A. Fight departing at 10- 30 a.m. That very day and that Dr. Mushtaq Hassan would be travelling on the same plane. He left for Karachi accordingly.
20. When the Registrar of this Court reported. To his Lordship at the Hospital, he dictated to him a letter in the following terms;------- "My dear Chief Justice, I cannot join the Court for four or six weeks. If you can wait for me till then, then it is alright otherwise you can form a new' Bench and dispose of the case.
21. Yours sincerely, Waheeduddin Ahmad."
22. As the signatures of the learned Judge, with which all of us had become familiar during our association extending over more than a decade, could not be recognized by any member of the Bench, we requested the Registrar to certify that letter had been signed by Mr. Justice Waheeduddin Ahmad in his presence at the C. M. H.
23. On the morning of the 4th of December 1978, i.e. Yesterday, all the three reports as well as the letter written to the Chief Justice by the learned Judge were shown to the learned counsel for the parties in the Chambers of the Chief Justice and the matter was discussed at some length in all its aspects. After the learned counsel had left the Chambers of the Chief Justice, the matter was then considered further by the remaining seven Judges of the Bench, and we unanimously formed the view that, in view of the reports furnished by the Medical Specialists, who have examined Mr. Justice Waheeduddin Ahmad, it has become abundantly clear that the learned Judge will not be able to resume his judicial functions in the foreseeable future in the present state of his health.1 Considering the reports, we agreed that the time required for his absolute recovery was uncertain in terms of weeks and months, and that eve after he had made recovery, he would need a couple of months for recuperation and even then he may not be fit to undertake strenuous work.
24. In the face of this medical evidence, we have reluctantly come to the conclusion that the present appeals have to be heard by the remaining seven Judges of the Bench as there is no other alternative. The only question is whether there is any legal or Constitutional bar in the way of our doing so.
25. It was submitted by Mr. Yahya Bakhtiar, the learned counsel for the appellant, that in the first place, the Court ought to have regard for the wishes expressed by Mr. Justice Waheeduddin Ahmad himself to the effect that he would be able to join the Court within four or six weeks, and for that reason alone the hearing should not be continued in his absence ; that the appointment of Mr. Justice Waheeduddin Ahmad as ad hoc Judge of the Supreme Court having been extended beyond the 22nd of November 1978, only for the hearing and decision of this case, he cannot be excluded from the Bench at this stage as this would be tantamount to his removal from the Supreme Court, an order which can only be made under Article 209 of the Constitution by the President of Pakistan on the recommendation of the Supreme Judicial Council ; that as the legal position is well established that when the law requires a thing to be done in particular manner, then it should be done in that manner or not be done at all, and, therefore, it is clear that the removal of Mr. Justice Waheeduddin Ahmad from the Supreme Court cannot be brought about by the Chief Justice acting in the purported exercise of his power to reconstitute the Bench for the hearing of a particular case ; and that the Full Court having been constituted into a Bench for the hearing of this case on the express request of Mr. Zulfikar Ali Bhutto, and it having commenced the hearing of this case and having continued with it for the last several months, there is no power in law at this stage to alter the Bench by excluding one learned Judge there from, whatever be the reason for his temporary inability to continue on the Bench for sometime. Lastly, the learned counsel submits that, in any case, he is prepared to close his oral arguments and to submit written submissions on the points which still remain to be dealt with in reply to the submissions made by the prosecution in reply to his earlier submissions on behalf of the appellant, and that his written brief could be read over to the ailing Judge in the hospital at Karachi, and he could then form his opinion as to the final judgment to be delivered in this case.
26. Mr. Ijaz Hussain Batalvi, appearing for the prosecution, submits that the invocation of Article 209 of the 1973 Constitution is misconceived in the pre--sent context, as the question before the Court is not of removal of the Judge concerned but purely of continuing the hearing of the case before the remaining seven Judges owing to the admitted physical incapacity of the Judge to sit on the Bench, a position which has been certified by eminent doctors from Karachi, Lahore and Rawalpindi, including the two physicians who had been treating Mr. Justice Waheeduddin Ahmad in the past. Mr. Batalvi contends that if a Judge is unable to perform his judicial functions, that inability does not by itself lead to his removal from the Bench or create a necessity of a reference to the Supreme Judicial Council, as, for instance, Article 181 makes it clear that if a Judge is temporarily unable to perform his functions then an acting Judge can be appointed to his place.
27. Mr. Batalvi further points out that Mr. Justice Waheeduddin Ahmad's extension/appointment was not specifically for this case, but his term was extended for a period specified in relation to the disposal of this case, and the learned Judge was not prevented or debarred from undertaking or doing other judicial work, and that, in fact, he had been doing so whenever any such work or case was entrusted to him by the Chief Justice.
28. Mr. Batalvi finally submits that the cases cited by Mr. Yaya Bakhtiar in support of his submissions are not directly relevant as they deal with questions of transfer of cases from one Bench of the High Court to another, or of reconstitution of a Bench in the middle of the hearing of a case even though none of the members of the Bench was incapacitated for any reason to continue with the hearing.
29. The learned counsel for the prosecution also objects to the adoption of the device of written arguments being forwarded to Mr. Justice Waheeduddin Ahmad so as to be read out to him on his sickbed, as he considers that such a procedure cannot be regarded as being in the nature of due judicial process which requires that Judges of the Bench should be available to each other for mutual discussion and deliberation before they formulate their final opinion on the large number of complicated and important questions of law and procedure as well as of fact which have been raised by both sides in these appeals.
30. After giving our fullest consideration to the submissions made by both sides, as well as the medical reports to which reference has been made earlier, and the letter written by Mr. Justice Waheeduddin Ahmad himself, we re-affirm our unanimous view that it is clear that Mr. Justice Waheeduddin Ahmad is unable to resume his judicial functions in the foreseeable future on account of his state of health, and we cannot act upon the wishes of 8 his lordship in preference to the considered opinion of his Medical advisers. The desire expressed by his Lordship is, indeed, laudable and shows his conscientiousness and devotion to duty, but in the face of the medical reports it will be cruel on our part, and in fact it is unthinkable for us, to subject him to any mental strain, which according to medical advice he cannot bear not only at this stage but even in the near future.
31. We agree with Mr. Ijaz Hussain Batalvi that reference to Article 209 of the Constitution is misconceived, as there is no question or intention here of removing his Lordship from the Supreme Court. Due to an act of God his Lordship has become incapable of performing his judicial functions, for the time being and in the foreseeable future, and the limited question before us is whether the present appeals should therefore b adjourned sine die for an indefinite period, its duration depending upon so many uncertain imponderables. It is clear that in the circumstances of the present case, and its length and complexity, its adjournment for any length of time would be highly undesirable .; and might even necessitate a re-hearing of the whole case so as to refresh our mind on questions of law and fact, which have been so painstakingly argued by both sides before us. We are absolutely clear in our mind that this Court cannot afford to undertake such an exercise.
32. This being not a case of the removal of a Judge, the cases Cited by Mr. Yahya Bakhtiar as to the principle of law that when a certain mandatory procedure is prescribed for doing a thing, it should be done in that manner or not at all, are not attracted. We also find that the other cases referred to by the learned counsel, namely, Radha Kishan Laximinarayan Toshnival v. Shri Dhar Ramchandara Alshi (AIR 1950 Nag. 177) and Zikar v. Government of Madhya Pradesh (AIR 1951 Nag. 11) do not relate to cases where the hearing was continued before the remaining Judges of the same Bench, and their number exceeded the number prescribed under the relevant rules for the disposal of those cases. These were cases of transfer or withdrawal from one Bench to another and the views expressed relate to that question alone.
33. Under the provisions of rule 1 of Order XI of the Supreme Court Rules and Orders the appeals of the present kind ought to be heard b a Bench consisting of not less than three Judges nominated by the Chief Justice. As already stated, in this case all the nine Judges of the Court were initially nominated to hear these appeals, on the express request o Mr. Zulfikar Ali Bhutto. One of the Judges, however, retired on the 31st of July this year on attaining the age of superannuation as prescribed b the Constitution, with the consequence that the hearing has continued before the remaining eight Judges. Now that one member of the Bench has unfortunately become incapable, owing to his continued indisposition, to sit on the Bench, there does not appear to be any legal impediment in the way of the hearing of these cases continuing before the remaining seven Judges of the same Bench. This number far exceeds the' minimum number of three Judges required under the rule just mentioned.
34. We are also of the view that, in the circumstances, there is in fact no question of reconstituting the Bench, because there is no addition or alteration, except that one member is not available to us for an uncertain and indefinite period, and the remaining members will have to carry on without him.
35. This being the case, any considerations of propriety or otherwise arising in cases of reconstitution of Benches by altering the personnel of the Bench for no valid reasons are irrelevant in the present context.
36. For the foregoing reasons we are of the view that the hearing of these appeals can continue in law before the remaining seven Judges of the same Bench, and we direct accordingly.
37. At the request of Mr. Yahya Bakbtiar the hearing will now be resumed on Saturday, the 9th of December 1978.