CONSTITUTIONAL PETITION No, 254 OF 1980 ' MIR KHUDA BAKHSH MARR1, C. J.-On 29-3-1980 when these petitions came for hearing, Mr..
Basharatullah, Advocate-General for Baluchistan on instructions from the Provincial Government, moved an application submitting "that this Honourable Court has been pleased to appoint Mr. Yahya Bakhtiar, Advocate to assist in the case as Amicus Curiae. That it is in this behalf respectfully to submit that not only Mr. Yahya Bakhtiar, may be found to be one whose attitude may be partisan but also the further fact is that he is being tried before a Special Court for alleged rigging in the general elections and there may thus be found justifiable reasons to conclude that he is not qualified to appear as amicus curiae. In support of his submission, no material was placed before the Court. He, however, relied on Islamic Republic of Pakistan v. Abdul Wall Khan (1) wherein Moulvi Mufti Mahmood moved an application before the Court to be allowed to be impleaded as a party or appear as amicus curiae. This application was rejected by the Court observing that "Learned counsel has lastly contended that even if the applicants cannot come in as proper parties, they might be allowed to appear as amicus curiae as distinguished from an intervener. In support of this contention, he has referred to the definition of an amicus curiae given in Volume III of the American Corpus Juris Secundum, at (1) PLD 1975 SC 463 page 1046. The same volume, however,, on the next page, states that :"One whose attitude appears'to be partisan, should not be permitted to appear amicus curiae. Under this rule, the petitioner would be disqalified even to appear as amicus curiae, because, on their own averment, they are very much interested in the case of the National Awami Party.
' It may be remembered that Moulvi Mufti Mahmood was one of the components of the United Democratic Front, which alongwith the defunct National Awami Party, formed coalition Government in 1972 in the Provinces of N.-W. F. P. And Baluchistan on behalf of his own party JUI and Mr. Abdul Wali Khan was then leader of NAP in the two Provinces and this was a reason for rejection of his request.
' The circumstances in the above-cited judgment are different than in the present case. It is not denied that Mr. Yahya Bakhtiar being a senior Advocate continues to be on the roll of Advocates and he continues to appear in this Court as an Advocate, the fact that mere a case is pending before a Tribunal does not disqualify him to appear in this Court as an Advocate or Amicus curiae.
Apart from above, we may mention here that alongwith Mr. Yahya Bakhtiar, Advocate we requested three other Advocates namely Mr. Muhammad Muqim Ansari, Haji Sarfaraz Khan and Mr. Muhammad Nawaz Ahmed to assist the Court in these important Constitutional petitions and they have been appearing in the Court since 25-11-1979 and the objection is only now and that also on behalf of the Provincial Government and not on behalf of Federal Government because no application or request has been made on behalf of Federal Government by the learned Deputy Attorney-General Mr. Irshad Hussain Khan who has been appearing for the Federal Government all along.
' We may observe here that for the Courts the Provincial or Federal Government are on equal footing vis-a-vis a citizen who might be a petitioner or respondent. Any request to a counsel to appear as amicus curiae is always in the interest of full and complete justice, no more no less and this discretion vests in this Court by tradition following the English Common Law. Therefore, there could not be any occasion for any party to unnecessarily feel aggrieved. In support of this we cannot do better than to rely on very well-considered judgment of the then Dacca High Court Durga Nath Thrafdar and others v. Debendra Nath Tarafdar and others (1) where Mr. Justice Guha has held that, "Before I part with this case I feel I should mention that the powers of this Court to hear amicus curiae is unfettered. Amicus curiae is a Latin expression which means "a friend of the Court" and in practice also it is "a friend of the Court." Amicus curiae is "one" who for the assistance of the Court, gives information of some matter of law in regard to which the Court is doubtful or mistaken or which the Judge has not seen or does not, at the moment, recollect. Section 2 Co. Ins.
178. This custom cannot be traced to its origin, but is immemoral in the English Law. It is recognized in the Year Books, and it was enacted in .4 Henry IV (1403) that any stranger is amicus curiae might move the Court.. Under the Roman system of Law the Indexx "specially if there was but one, called some lawyers to assist him with their Counsel." This custom became incorporated in the English system, and it was recognized throughout the earlier as well as the later periods of the common law in England. Anyone as amicus curiae may make an application to the Court in favour of an infant, though he be no relation. IV. Sen.
313. An attorney an amicus curiae may move the dismissal of a fictitious
(1) PLD 1951 Dacca 89 suit : Haly v. Bank (1) the term is sometimes applied to counsel heard in a cause because interested in a similar one. The subject is elaborately discussed in Bouvier'e Law Dictionary, Third Edition, Vol. I at pages 188 to 189. In my view the power lies, in a Judge of this Court to hear amicus curiae, where the Judge thinks that he requires assistance in deciding a cause, where he is in doubt on a point of law. In this Court on one occasion the learned Advocate of this Court raised a protest but the matter was not pursued and then I indicated that on a future occasion I shall express my view in the matter ; hence I am expressing my view in the matter in this case, which has been heard amicus curiae".
' For the reasons given above, we see no substance in this application which is hereby dismissed.
(1) 12 L R A 815