' M. MAHBOOB AHMAD, C.J.---Sheikh Abdul Haq, petitioner filed a Constitutional petition (Writ Petition No, 1355/75) under Article 199 of the Constitution of Islamic Republic of Pakistan praying for a direction against the Punjab Industrial Development Bank of Pakistan, Lahore, Messrs Crescent Factory Limited, Chichawatni and the Government of Pakistan through Secretary, Ministry of Industries, Islamabad to settle the account and compensation of the petitioner in respect of determination of the lease of Crescent Factory Limited, Chichawatni. This writ petition was heard by the learned Chief Justice of this Court who per his verbal order accepted the same on 13-11-1979.
On 27-5-1980 he was appointed ad hoc Judge of the Supreme Court of Pakistan and took oath of that office on 2-6-1980.
2. On 28-4-1983, a miscellaneous application (C.M.No, 1424/83) was filed by the applicant for review of the aforesaid order on the ground that the learned Chief Justice had ceased to be a Judge of this Court w.e.f, 27-5-1980; that he had not written judgment before his elevation to the Supreme Court; that the judgment written thereafter was of no legal effect and as such the writ petition will be deemed to be pending and therefore, the same be heard on merits. This application was allowed by Mr. Justice Javed Iqbal the then learned Chief Justice on 9-7-1983 who was of the view that as the judgment in the case had been written after Mr. Justice Mushtaq Hussain had ceased to be Judge of this Court, the writ petition merited to be re-heard.
3. The respondent in this application, who was the writ petitioner challenged order dated 9-7-1983 by filing the appeal with the leave of the Supreme Court of Pakistan. It may be mentioned that against the judgment of Mr. Justice Mushtaq Hussain written in pursuance of the verbal announcement the present applicant also went in appeal before the Supreme Court. Both these appeals were taken up for hearing together by the Supreme Court of Pakistan, which by its judgment dated 20-5-1990 set aside the order passed by the learned Chief Justice dated 9-7-1983 passed in C.M. No, 1424/83 in Writ Petition No, 1355/75 and remaned the miscellaneous application to this Court for determination afresh after notice to the parties. The other appeal namely Civil Appeal No, 271/1988 which is directed against the judgment of Mr. Justice Mushtaq Hussain was kept pending to await the decision of this Court in the aforementioned Civil Miscellaneous.
4. Pursuant to the order of remand, we have heard Mr. S.M. Zafar Advocate on behalf of the applicant and Raja Muhammad Akram, Advocate on behalf of the respondent/writ petitioner.
5. The learned counsel for the applicant submitted that though oral order was announced by the learned Chief Justice on 13-11-1979, whereby he accepted the writ petition filed by the respondent, but the judgment having not been written or signed by the learned Chief Justice before he became a Judge of the Supreme Court, the judgment subsequently delivered by him is of no legal effect.
The learned counsel relied upon certain authorities and textbooks to show that a judgment written by a Judge who had ceased to hold office is of no legal validity.
6. In order to show that in the present case, the judgment was written and signed by the learned Chief Justice after he had ceased to hold office of the Chief Justice of this Court reliance was placed on the position that in the report called on the Civil Miscellaneuos Application by Mr. Justice Javed Iqbal while hearing the said Civil Miscellaneous the ex-Reader to Mr. Justice Mushtaq Hussain had reported that the file was taken by the learned Chief Justice at the time of his elevation to the Supreme Court which was handed over to the Reader after couple of months. The learned counsel also emphasised that on the judgment, there appears a note to the effect that the blue slip was added on 25-8-1980 and that it was verified on 28-8-1980.
7. Raja Muhammad Akram the learned counsel for the respondent writ petitioner however, contended that there was nothing on the record to show that the judgment was not signed by the learned Chief Justice at the time when he held that office. According to the learned counsel as Mr. Justice Mushtaq Hussain had signed the judgment as Chief Justice of this Court, a strong presumption arises that at that time he was holding the office of the Chief Justice. The learned counsel in this respect relied upon the observations of the Supreme Court in The Pakistan Shipping Corporation and another v. Rustam F. Cowasjee and others reported as 1989 SCM R 1332.
8. Having heard the learned counsel for the parties and perused the record, we do not find any force in this civil miscellenaous application. As has been pointed out by the learned counsel for the respondent, there is nothing on the record to show with certainty that the judgment was not written and signed by Mr. Justice Mushtaq Hussain while he held the office of the Chief Justice. We are unable to agree with the learned counsel for the applicant that merely because the blue slip was added or verified in August, 1980, it should be presumed that the judgment was signed and written at that time. The report of the Reader on which much reliance was placed by Mr. S.M. Zafar, Advocate also does not advance his case, for what has been stated therein is only that Mr. Justice Mushtaq Hussain had taken away the file at the time of his elevation to the Supreme Court and had returned the same after a couple of months. There is however, nothing in the report to suggest that at the time when the file was taken away by the learned Chief Justice, the judgment had not been written or signed. We are fortified in the view which we have taken by the authority of the Supreme Court cited above viz. 1989 SCM R 1332 which is on all fours and squarely appllies to the facts of the present case. The relevant observations of the above report appearing at page 1344 may usefully be reproduced hereunder:-- {{PAGE CUTTING}} "As regards the question relatable to the announcement, preparation an standing of a High Court judgment, we find that the contention of the learned counsel for the appellant is based on an assumption of fact an without that assumption of fact the argument cannot stand by itself. The assumption of fact is that because there is a blue slip of a functional associated with the Court work certifying that the judgment was fit to b reported which was recorded and bears the date 27- 8-1980 it has bee presumed that on that date the written judgment was signed by th Judge. On that conclusion it is inferred that the learned Chief Justic having already left the Court on 26-5- 1980 his written judgment was rendered a nullity. Such an assumption of fact is against the contents the judicial record enjoying the highest, credibility. It appears ex faci that the written judgment was signed by the learned Chief Justice in th capacity of and at the time when he held the office of the Chief Justic and on what date the office received the file or some ministers: functionary attended to it cannot upset such a content and effect of the judicial record. The receipt of record in the office, the attention paid to by the ministerial functionaries, has no bearing on the subject. Therefore, do not want to go in detail into the correctness or otherwise the decision in Nazar Abbas Khan's case but all that we can say at th stage is that the act of putting the signatures of a Judge cannot b necessarily related to or be determined by the date of receipt of file I the office from the Judge or any other quarters. The two are dates and times and they each have to be established by their evidence and not one from the other. The presumptions raised from record and attaching to such a record are not affected by the made by the learned counsel for the appellants. Hence this very objection was misconceived and is untenable."
' In the cited precedent, the case was heard and the judgment was oral announced by the Chief Justice on 5-6-1978 and the office note showed that file was sent to the office on 27-8-1980 while in the present case, the case heard on 13-11-1979 and the file was sent to the office on 25-8-1980.
9. We consequently hold that as Mr. Justice Mushtaq Hussain had sign( the judgment as the Chief Justice, a presumption of highest credibility arises the he was holding that office at that time and the mere fact that the file was receive by the office in August, 1980, or blue slip was added by the ministerial staff at th time cannot rebut this presumption. In the light of the view which we have take it is not necessary to deal with argument of Mr. S.M.Zafar, Advocate and the authorities cited by him that if a Judge ceases to hold office, the judgment signed by him thereafter is of no legal effect.
10. We do not find any force in this petition, which is dismissed but leave the parties to bear their own costs. {{PAGE CUTTING}}