' What is invofved in this order is interpretation of rule 6 of Chapter 3-B of the High Court Rules and Orders, Volume V. It reads as follows:- "6. The Judge or Judges of a Bench by whom any question or case is referred shall ordinarily be members of the Division Bench or Full Bench, as the case may be, appointed to consider such question or case."
2. The case which has necessitated interpretation of the said rule is Writ Petition No,5268 of 1992, Abdul Qayyum Khan v. Government of the Punjab and another. This Constitutional petition was filed on 8th June, 1992, and was entrusted to my learned brother, Malik Muhammad Qayyum, J.
After the admission of the writ petition to regular hearing, it was heard on a number of occasions.
Ultimately, the parties agreed to refer the dispute to arbitration. Subsequently, the parties joined issues with regard to the award given by the arbitrator and thus the matter was again placed before my said learned brother.
3. Mr. Justice Malik Muhammad Qayyum was still seized of the matter when, on 4th September, 1994, I asked him to work at Bahawalpur Bench for six weeks, with effect from 18th September, 1994, as senior member of that Bench alongwith two other learned Judges who were new entrants of the superior judiciary. Before 18th September, 1994, I took over as Acting Governor of the Punjab as the Governor had gone abroad for medical checkup. In consequence, my learned brother Irshad Hasan Khan, J. Was appointed as Acting Chief Justice of this Court. Mr. Justice Irshad Hasan Khan partly modified my order so as to keep Mr. Justice Malik Muhammad Qayyum at the Principal Seat in the week commencing 18th September, 1994. Thereafter, on 20th September, 1994, Mr. Justice Malik Muhammad Qayyum felt that in view of the nature of the controversy involved, it was desirable that the matter be heard by a larger Bench, accordingly, the case was put up before me for orders.
4. By 2nd October, .1994, I had come back to the High Court on the return of the Governor from abroad and on that date I passed the following 'order:- "Full Bench consisting of Mr. Justice Munir A Sheikh, Mr. Justice Ghulam Ahmad and Mr. Justice Muhammad Asif Jan to hear the matter on an early date to be fixed within a week by the learned Senior Judge. It is an urgent matter of great public importance and deserves to be decided within a couple of weeks. As the learned referring Judge is away to Bahawalpur for about five weeks he is not included in the Bench."
5. Subsequently, on 6th October, 1994, the case came up before the Full Bench constituted by me when Dr. A. Basit, Advocate, learned counsel for the Petitioner, pointed out that Mr. Justice Malik Muhammad Qayyum, on whose reference the larger Bench had been constituted, should, according to the rule of propriety, also sit in the Bench. Thereupon, the learned Full Bench passed the following order:- "Under Rule 5, Chapter 3-B, High Court Rules and Orders, Volume V, it is the prerogative of the learned Chief Justice to nominate the Judges constituting a larger Bench. Rule 6 of the said Rules, however, provides that the Judge or Judges of a Bench by whom any question or case is referred shall ordinarily be members of the Division Bench or Full Bench, as the case may be, appointed to consider such question or case.' We think it appropriate to refer the matter to the learned Chief Justice for considering the propriety of nominating Malik Muhammad Qayyum, J., as one of the Judges, constituting the Bench."
Accordingly, the file was again placed before me today.
6. It is apparent from rule 6, reproduced at the outset, that the Judge by whom any question or case is referred, shall ordinarily and non-necessarily be a member of the larger Bench appointed to consider such question or case. I had read this rule carefully while constituting the above Full Bench and had given reasons for not including my learned brother, Malik Muhammad Qayyum, J.
Therein. These reasons took good care of the word ordinarily which was perhaps in the mind of Dr. A. Basit when he raised the question of propriety.
7. I may mention here that it is not for the first time that the referring Judge has not been included in the Full Bench. Writ Petition No,386 of 1993/Rawalpindi, Mr. Gohar Ayyub Khan v. Ghulam Ishaque Khan, etc., which related to the dissolution of the previous National Assembly of Pakistan, came up before Mr. Justice Ijaz Nisar, on 19th April, 1994, at the Rawalpindi Bench when he referred it to the Chief Justice Mr. Justice M. Mahboob Ahmad (as he then was) for placing it before a larger Bench and the then Chief Justice was pleased to refer it to a Bench consisting of himself, Mr. Justice Sardar Muhammad Dogar, Mr. Justice Khalil-ur-Rehman Khan, Mr. Justice Irshad Hasan Khan and Mr. Justice Malik Muhammad Qayyum, JJ. He thus excluded the referring Judge, namely, Mr. Justice Ijaz Nisar from the Full Bench. No reason whatsoever was given for the exclusion of Mr. Justice Ijaz Nisar therefrom who was required to work at Rawalpindi Bench for less than six weeks. On the other hand, my order in regard to the constitution of the Full Bench, headed by Mr. Justice Munir A. Sheikh, is a speaking order inasmuch as it spells out the reasons for which Mr. Justice Malik Muhammad Qayyum had not been included in the Full Bench.
8. I have already pointed out that I did not include Mr. Justice Malik Muhammad Qayyum in the Full Bench because the case concerned related to an urgent matter of great public importance and deserved to be decided within a couple of weeks but Mr. Justice Malik Muhammad Qayyum was not available to sit in the Bench at the Principal Seat during those weeks. The case pertained to very huge amount of Exit Tax which had been challenged in the writ petition. The dispute involved therein had not been resolved for more than two years. Although the learned referring Judge did not say in so many words yet by making a mention of the nature of the controversy involved in the writ petition and by referring it to a larger Bench it was appreciated by him that it was of a very important nature. On an earlier occasion also, on 24th April, 1994, he referred the following two questions to a larger Bench:-- "(i) Whether dispute in a Constitutional petition can at all be referred to arbitration?
(ii) If the answer to the first question is in affirmative, whether an application under section 14/17 as also sunder section 30/33 of the Arbitration Act, 1940 for filing of the award or setting aside the same, as the case may be, would lie before this Court or before a Civil Court having territorial jurisdiction over the matter?"
' While raising these two questions Mr. Justice Malik Muhammad Qayyum had observed as follows:- - "There appears to be no decided case from Supreme Court or this Court on these points which are not free from difficulty. Any decision rendered thereon is likely to affect large number of cases."
' These remarks also support my view that the case in question is of general public importance. It was for this reason that I wanted that the instant case, which was hanging fire for more than two years, should be decided within a couple of weeks and in order to achieve this object, I constituted a Full Bench, without including my learned brother, Malik Muhammad Qayyum, J. Therein.
9. In view of what has gone above, I find nothing wrong with the legality or propriety of the order passed by me in respect of the constitution of the Full Bench. It, however, appears that learned counsel for the petitioner, Dr. A. Basit, Advocate, desires that Mr. Justice Malik Muhammad Qayyum should also sit in the Bench. Therefore, with a view to satisfying his desire, I propose to form a still larger Bench so as to include the said learned Judge therein. However, in order to ensure that, in the event of equal division of the Judges at the time of decision, the case may not remain undecided, I will have to add another member to the Bench. In other words, I will have to constitute a Bench consisting of five Judges. With this end in view, I reconstitute the Full Bench which shall now be comprised of the following learned Judges:-
(i) Mr. Justice Munir A. Sheikh.
(ii) Mr. Justice Malik Muhammad Qayyum.
(iii) Mr. Justice Mian Ghulam Ahmad.
(iv) Mr. Justice Ch. Khurshid Ahmad.
(v) Mr. Justice Muhammad Asif Jan.
10. Since the case is required to be decided soon, I will have to re-call Mr. Justice Malik Muhammad Qayyum from Bahawalpur Bench and send him there again after the decision of the case. This, I will do by issuing necessary notifications separately.
11. Now, the case shall be fixed for hearing before the newly-constituted Full Bench for 12th October, 1994, Day to day hearing shall be resorted to by the learned Full Bench with a view to deciding the case within the next two weeks.