' MUHAMMAD NAWAZ ABBASI, J.---This constitution petition bearing No,9 of 2007 under Article 184(3) of the Constitution, has been filed by Mr.Shahid Orakzai challenging the appointment of Mr. Justice Rana Bhagwandas as Acting Chief Justice of Pakistan on the ground that an appointment under Article 180 of the Constitution of Islamic Republic of Pakistan, 1973, is subject to Articles 2 and 2-A of the Constitution and a non-Muslim cannot be appointed as Chief Justice or Acting Chief Justice of Pakistan.
3(sic). In the connected Constitutional Petition filed by Maulvi Iqbal Haider bearing No,17 of 2007, a declaration has been sought that the appointment of a non-Muslim as a Judge or Acting Chief Justice of Pakistan or Chief Justice of Pakistan is not unconstitutional.
4. Notice was issued to the respondent vide order dated 2-4-2007 as under:-- "After having heard Mr. Shahid Orakzai (petitioner in person) at length we feel inclined to issue notice to the respondent on the point as to whether a Muslim Judge of the Supreme Court performing functions under Article 180 of the Constitution of Islamic Republic of Pakistan can be asked to hand over the office of the Chief Justice of Pakistan to a non-Muslim and whether various other functions which have been assigned under the Constitution to the Chief Justice of Pakistan can be performed by a non-Muslim Chief Justice. Beside that various other Articles such as Articles 177, 41, 178, 255, 196, 203, 217, 168 have been referred which require interpretation. Adjourned. To come up on 4-4-2007."
5. The petitioner in person, in support of this petition has contended that Pakistan is an Islamic State and notwithstanding the fact that no prohibition is contained in the Constitution of Islamic Republic of Pakistan to appoint a non-Muslim as Chief Justice or Acting Chief Justice of Pakistan in the light of Articles 2 and 2A read with Articles 177, 41, 178, 255, 196, 203, 217 and 168 of the Constitution, a non-Muslim cannot be appointed as a judge or Chief Justice or Acting Chief Justice of Pakistan and as per mandate of the Constitution in absence of Chief Justice, presently the Court is not properly constituted. The petitioner on asking of the Court that what is his locus standi to maintain this petition, submitted that he being a Muslim citizen of Pakistan is under an obligation, by virtue of Article 5 of the Constitution to be loyal and obedient to the Constitution and he can competently challenge the Constitutional appointment if not made in the spirit of the Constitution.
The collateral grounds taken in support of this petition are (a) that the matter pertains to the enforcement of fundamental rights of Muslim citizen of Pakistan and the question involved therein was of great public importance and (b) without validly appointed Chief Justice of Pakistan or Acting Chief Justice of Pakistan, the Supreme Court cannot competently function under the Constitution.
6. The Chief Justice of Pakistan and Judges of Supreme Court are appointed under Article 177 of the Constitution, whereas Acting Chief Justice of Pakistan is appointed under Article 180 of the Constitution if at any time the office of Chief Justice of Pakistan is temporarily vacant for any reason or if he is unable to perform functions of his office due to any cause, it is the Constitutional obligation of the President to appoint the most senior Judge of the Supreme Court as Acting Chief Justice of Pakistan. Article 180 of the Constitution provides as under:-- "180. At any time when---
(a) the office of Chief Justice of Pakistan is vacant; or
(b) the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint [the most senior of the other Judges of the Supreme Court] to act as Chief Justice of Pakistan."
In the present case, the appointment of Mr. Justice Rana Bhagwandas, who is the senior most Judge of the Supreme Court of Pakistan, next to Chief Justice as Acting Chief Justice of Pakistan was made for the reasons that the Chief Justice of Pakistan was unable to perform his functions due to the order passed by the President restraining him from functioning as Chief Justice of Pakistan. The petitioner has not been able to show us any bar in any of the Articles of Constitution including Articles 2 and 2A of the Constitution that a non-Muslim cannot be appointed as Chief Justice or Acting Chief Justice of Pakistan or a Judge of the Supreme Court. This is correct that a petition of the nature of quo Ivarranto can be filed to question the appointment of a person as Judge of the Superior or Inferior Court if his appointment was not made in accordance with the law and Constitution but no such petition can be maintained against the appointment of Acting Chief Justice of Pakistan under Article 180 of the Constitution or Chief Justice of Pakistan under Article 177 of the Constitution on the ground that appointee was non-Muslim. The legislature may in its domain subject to the Constitution and the principle of equality before law and equal treatment before law can make a law that a non-Muslim citizen cannot be appointed against a particular post but there is no prohibition in the Constitution or any law that a non-Muslim cannot be appointed as a Judge or Chief Justice in the superior courts.
' This petition appears to.
7. The connected constitution petition bearing No,17 of 2007 filed by Maulvi Iqbal Hadier also appears to be frivolous in nature as in the light of the clear provisions of Article 180 read with Article 260 and other Articles of the Constitution, there is no need to file such a petition and seek declaration from this Court that appointment of Mr. Justice Rana Ahagwandas was in accordance with the Constitution. The petitioners in both these petitions have not brought these petitions in good faith and should have been burdened with heavy costs for wasting the public time and exchequer but we dismiss these petitions being not maintainable with normal costs.