' JAVED IQBAL, J.--- The above captioned petitions for leave to appeal arising out of the common judgment, dated 31-8-2004 passed by the learned Federal Service Tribunal, Islamabad, whereby the appeals preferred on behalf of petitioners have been dismissed, are being disposed of by this judgment as similar questions of law and facts are involved.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that Mr. Muneer Ahmed Sheikh retired as District and Sessions Judge with effect from 29-2-2000 on attaining the age of superannuation. He was directed vide notification dated 1-3-2000 to continue to hold charge of the Judge, Accountability Court on a contract of one year which was extended for another year with effect from 1-3-2001 vide notification dated 27-2-2001. Sheikh Muhammad Rafiq Goreja superannuated and retired as District and Sessions Judge with effect from 7-9-2000. He was appointed Judge, Accountability Court for a period of two years under section 5(g) of the NAB Ordinance, 1999, on the pay, allowances and privileges of the Judge of a High Court vide Notification, dated 31-8-2000", and resultantly the terms and conditions of appointment of petitioners were modified and they were treated at par with their counterparts qua remuneration and privileges with the specific direction that they shall not be paid the salary admissible to the High Court Judge. Being aggrieved, a representation was made to the Ministry of Law, Justice and Human Rights Division, which was rejected. The President of Islamic Republic of Pakistan was approached as a last resort by way of appeal, which resulted in 50% waiver of the amount due on account of excess payment. The petitioners being dissatisfied preferred appeals before learned Federal Service Tribunal which were rejected, hence these petitions.
3. Heard Mr. Khadim Nadeem Malik and Mr. Mujeeb-ur-Rehman, learned Advocates Supreme Court on behalf of petitioners at length, scanned the entire record and perused the judgment impugned with care and caution. The prime contention of the learned Advocates Supreme Court on behalf of petitioners is that the judgment of this Court reported in Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 has been misinterpreted and misconstrued and more so the terms and conditions of the petitioners could not have been modified unilaterally adversely affecting the vested rights of the petitioners. In order to appreciate the said contention we have carefully perused the judgment of this Court passed in Khan Asfandyar Wali's case (supra), relevant portion whereof reproduced hereinbelow for ready reference is:- "193. We are of the view that for smooth and effective functioning of the Accountability Courts all the Judges should be serving District and Sessions Judges qualified to be appointed as Judges of the High Court. They should be appointed for a period of three years in consultation with the Chief Justice of the concerned High Court and not with the Chief Justice of Pakistan as contemplated in section 5(g) of the-NAB Ordinance. During their term of appointment as such they shall not be transferred to any other place nor removed from service except on ground of misconduct, or physical or mental infirmity by the competent authority i,e, the. High Court concerned, after following the procedure prescribed in the relevant rules in that regard. They shall be entitled to same remuneration, privileges, facilities and allowances as are admissible to their counterparts who are performing functions in respect of Courts and Tribunals established by the Federal Governments. They shall not be paid the salaries and privileges as are admissible to Judges of the High Court except security arrangements if and when required having regard to the nature of their work. Remuneration already drawn for the period they performed their functions as Judges of the Accountability Courts shall not be recovered being hit by the doctrine of past and closed transaction. Further, appointment and posting as Judge of Accountability Court shall not debar such Judge from being elevated as Judge of a High Court if so appointed in terms of Article 193 of the Constitution.
194. The present incumbents/Judges of the Accountability Courts who are not serving District and Sessions Judges shall be given an option to serve as such on the last pay/salary drawn at the time of their retirement as District and Sessions Judges for the remainder part of their term of three years otherwise their services shall be dispensed with by giving them three months salary."
4. A carefully scrutiny of the relevant paragraphs of the judgment reported in Khan Asfandyar Wali's case (supra) would reveal that the same have been couched in a very simple and plain language which being free from any ambiguity hardly needs any scholarly interpretation. It is directed in a categoric and crystal clear manner that:---
(i) the Judges of the Accountability Courts should be serving District and Sessions Judges, qualified to be appointed as Judges of the High Court;
(ii) the appointment should be for a period of three years after having consultation with the Chief Justice of the concerned High Court;
(iii) there should be no consultation with the Chief Justice of Pakistan as enumerated in section 5(g) of the NAB Ordinance, 1999;
(iv) the Judges of the Accountability Courts should not be transferred or removed from service except on the ground of misconduct, physical or mental infirmity by the competent authority after completion of all the necessary mandatory and legal formalities;
(v) the Judges of the Accountability Courts shall be entitled to same remuneration, privileges and facilities as are admissible to the other District and Sessions Judges;
(vi) the Judges of the Accountability Courts shall not be paid the salaries and privileges as are admissible to the Judges of the High Court except security arrangements;
(vii) the remuneration already drawn by the Judges of the Accountability Courts shall not be recovered being hit by the doctrine of past and closed transaction;
(viii) the appointment as Judge of Accountability Court shall not impose a restriction on such Judge from being elevated as Judge of the High Court;
(ix) the serving Judges of the Accountability Courts who are not serving as District and Sessions Judges shall be given an option to serve as such on the last pay/salary drawn at the time of their retirement as District and Sessions Judges;
(x) the services of Judges of the Accountability Courts could have been dispensed with by giving them three months salary.
5. The terms and conditions of appointment of the Judges of the Accountability Courts have been determined in Khan Asfandyar Wali's case (supra) and the question of any deviation therefrom does not arise. It has been made abundant clear as mentioned herein above that the Judges of the Accountability Courts shall not be paid the salaries and privileges as are admissible to the Judges of the High Court. The above categoric direction has been implemented as it was obligatory for the Government to do the needful, which has been done. We are not persuaded to agree with the prime contention of the learned Advocate Supreme Court that the view point as portraited in paragraphs 193 and 194 of the judgment of Khan Asfandyar Wali's case (supra) is mere expression of view and at the best can be treated as suggestions but cannot be implemented without making suitable amendments in the relevant Act and more so no question of law was decided by this Court hence the question of its implementation does not arise for the simple reason that the decision of the Supreme Court is binding not only on all the Courts in Pakistan but also on all functionaries of the Government irrespective of its nature. "The law declared by the Supreme Court is binding on the State and its officers and they are bound to follow it whether the respondents in a particular case were parties or not to the previous petition". T.K.N.
Rajgopal v. T.M. Karnanidhi (1972) 4 SCC 267. Decisions per incurium do not constitute binding precedent. Such decisions are those which are given in ignorance of the terms of the Constitution or of a statute or of a rule having the force of a statute. Also an order delivered without argument, without reference to the relevant provisions of the Constitution or the Act and without any citation of authority is per incurium. Similarly, decisions sub silentio have no precedental value. Such decisions are those which are given on a point of law not perceived by the Court or present to its mind. Sometimes well considered obiter dicta of the Supreme Court are taken as precedent but every passing expression of a Judge cannot be treated as an authority". Municipal Corporation of Delhi v. Gurnam Kaur (1989) 1 SCC 101; State of U.P. v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139; Saiyada Mossarrat v. Hindustan Steel Limited, Bhilai Steel Plant (1989) 1 SCC 272, 278. It is well settled by now that "the ultimate responsibility of interpreting the law of the land is that of the Supreme Court. Therefore any decision of the Supreme Court shall, to the extent it decides a question of law or is based upon or enunciates a principle of E law, is binding on all other Courts in Pakistan. A decision in suo motu Shariat review petition followed by Supreme Court would be binding on all other Courts in Pakistan. Law declared by Supreme Court becomes the law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of the Government." Ali Muhammad v. Mahmoodul Hassan PLD 1968 Lah. 329; Mubinul Haq v. Muhammad Iqbal PLD 1964 Lah. 23; Maroof Khan v. Damsar Khan 1992 MLD 21; Salahuddin v. State 1990 PCr.LJ 1221; Malik Muhammad v. Jan Muhammad 1989 CLC 776; Abdul Ghaffar Khan v. Saghir Ahmed Aslam PLD 1987 Lah.
358. Apart from the Constitutional obligation as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan even the propriety demands that all the functionaries of the Government must adhere to the decisions of the Supreme Court and if any direction is given in such decisions that would also be considered as binding on all the Government functionaries and cannot be considered lightly being an integral part of the decision. Even for the sake of argument if it is admitted that the directions given by the Supreme Court qua the terms and conditions of Judges of Accountability Court as obiter dictum of the Supreme Court, even then it would be binding in nature because "where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of this Article and is binding on all Courts in Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to the high place which the Court holds in the hierarchy of Courts in the country, enjoy a highly respected position as precedent, and is binding on all other Courts, if it contains a definite expression of their Lordships opinion". (Emphasis provided). Bimla Devi v. Chaturvedi AIR 1953 All. 613; Faiz Bakhsh v. Muhammad Munir 1986 CLC 507; Muhammad Ismail & Sons v. Trans-Oceanic Steampship Co. Ltd. PLD 1966 Dacca 296 and K.P. Doctor v. State of Bombay AIR 1955 Bom.
220. The obiter dictum given with the intention of enunciating a principle would have binding force and cannot be ignored lightly.
6. It is worth mentioning that an option was given to the Judges of the Accountability Courts and besides that the appointment letter has removed all the doubts qua their salary/privileges and from whatever angle it may be interpreted the Judges of the Accountability Courts are not entitled to get the pay being drawn by a High Court Judge as directed by this Court in the above referred to judgment. It is worth mentioning that a reasonable concession has already granted by the President of Pakistan and no more indulgence is called for. The petitioners were well aware regarding the modification of the terms and conditions as notified earlier and made pursuant to the judgment passed in Khan Asfandyar Wali's case (supra) and no separate legislation whatsoever was needed to modify the terms and conditions of appointment of the Judges of the Accountability Courts.
7. Be as it may every fair opportunity was afforded to the petitioners to join service or otherwise after modification in the terms and conditions of the Judges of the Accountability Court made pursuant to the directions as contained in Khan Asfandyar Wali's case (supra). No injustice whatsoever has been done and even otherwise reasonable indulgence has been shown by the President of Pakistan by waiving the 50% of the amount due as mentioned hereinabove. No other question was argued. The petitions being devoid of merits are dismissed and leave refused.