9. In a writ petition filed by Mian Muhammad Nawaz Sharif, against a Special Court (presided over by Mr. Justice Tanvir Ahmad Khan) and two others, challenging the validity of an interim order passed by the said learned Court, I constituted a Full Bench comprising the following Judges to hear the said writ petition:--
(i) Mr. Justice Ijaz Nisar.
(ii) Mr. Justice Mushtaq Ahmad Khan.
(iii) Mr. Justice Ch. Khurshid Ahmad.
' Today, when the case came up before the learned Full Bench, the petitioner made an application assailing the constitution of the Bench. His application has been forwarded to me by the learned Full Bench for necessary orders.
10. The petitioner's application finding fault with the composition of the said Full Bench is, to say the least, uncalled for. No litigant or lawyer has a right to take his case before a Bench of his own liking.
It was so laid down by the Supreme Court in Malik Hamid Sarfraz v. Federation of Pakistan and another PLD 1979 SC 991. Relevant observations, made in this behalf; are as follows:-- "It is the undisputed privilege and duty of the Chief Justice, whether of a High Court or of the Supreme Court to constitute Benches for the hearing and disposal of cases coming before his Court; and no litigant or lawyer can be permitted to ask that his case be heard by a Bench of his choice."
11. As for the plea that Mr. Justice Ch. Mushtaq Ahmad Khan and Mr. Justice Ch. Khurshid Ahmad are Additional Judges of the Court and are awaiting confirmation, I would like to refer to the definition of the word "Judge", as embodied in Article 260 of the Constitution, in which it is provided that "Judge" in relation to the High Court includes the person who is an Additional Judge of the Court. Thus, for the purpose of deciding cases in a High Court, an Additional Judge is as good a Judge as a permanent one.
12. It is true that the Additional Judges are awaiting confirmation but that makes little difference. In the case of Malik Hamid Sarfraz, cited above, it was argued that since the Attorney-General, who was appearing for the Federation of Pakistan in the said case, was also the Federal Law Minister, he was in a position to initiate disciplinary proceedings against the Judges of the Supreme Court and, therefore, it was not proper for him to appear in the case before the Supreme Court. This plea was strongly repelled by the Supreme Court in the following words:- "The other reasons given by Mr. Mahmud Ali Qasuri for saying that it is not proper for Mr. Sharifuddin Pirzada to appear before this Court are, we regret to say, highly inappropriate, and not befitting the dignity and position' which Mr. Qasuri occupies in the legal profession. By making such submissions he has tried to insinuate that the Judges of the Supreme Court would not be able to do justice in the matter as either they would feel beholden to Mr. Sharifuddin Pirzada for their appointment, or they would feel intimidated in his presence because of his power to initiate disciplinary proceedings against them---assumptions which are unworthy of the learned counsel and unfair to the Judges of this Court. We are all bound by our oath of office to do justice without fear or favour, and it matters little whether the person appearing before us combines in himself the offices of Attorney-General and the Law Minister or, indeed, any other offices of the realm. We strongly deprecate the insinuation made by Mr. Mahmud Ali Qasuri, and would like to express the hope that he made these submissions without fully realising their mischievous implications."
The learned Additional Judges included by me in the Full Bench are also bound by their oath of office to do justice without fear or favour and it matters little that they are yet to be confirmed.
Instances are not lacking in which the Additional Judges have passed judgments against the Government and its functionaries on several occasions. The inclusion of the Additional Judges in the Bench is, therefore, not open to any legitimate exception.
13. As ruled by the Supreme Court in the cited case it is undisputed privilege and duty of the' Chief Justice whether of the High Court or of the Supreme Court to constitute Benches for the hearing and disposal of cases coming before his Court. I, accordingly, constituted the Full Bench which, to my mind, does not suffer from any defect. The said Bench may continue to hear the case.
14. This disposes of the application made by the petitioner before the learned Full Bench today.