' MUNAWAR AHMAD MIRZA, J.---Petitioner through present petition seeks review of judgment, dated 4th June, 1995 passed in Civil Appeal No,238 of 1994.
2. Facts emanating from the record are that petitioner acquired citizenship of Pakistan on 11th February, 1971. He was enrolled as Advocate of High Court of Sindh and Balochistan on 21st March, 1971. On 12th August, 1974 he joined service as Chief Magistrate at Uganda and held the office till 28th November, 1978. He worked as Legal Advisor/Secretary, Uganda Commercial Bank from 1st December, 1978 to 30th May, 1979. Petitioner was appointed as Judge of Uganda High Court during September, 1979 and continued to perform functions in the said capacity till February, 1982 and returned to Pakistan in month of April, 1982. Petitioner also applied for enrolment as Advocate of the Supreme Court and requisite fitness certificate in that behalf was issued by High Court of Sindh on 10th October, 1982. He was enrolled as Advocate of Supreme Court on 23rd May, 1983 and thereafter signed the roll. Record reveals that on 14th June, 1983, Federal Public Service Commission advertised post of Member, Income Tax Appellate Tribunal. Petitioner applied for the said post and after recommendation of the F.P.S.C., dated 26th March, 1983, was appointed as Judicial Member, Income Tax Appellate Tribunal, vide notification, dated 26th March, 1984. He was posted at Karachi and assumed office on 8th April, 1984. Petitioner also performed duties of Acting Chairman of the Income Tax Appellate Tribunal in B-22. It is the case of petitioner that respondent Ch. Muhammad Siddique, Advocate, filed a petition under Article 199 of the Constitution for disclosing under what authority petitioner was holding office of Judicial Member, Income Tax Appellate Tribunal. Petition was dismissed in limine on 5th February, 1989, by learned Judge in Chamber of the Lahore High Court. Then Ch. Muhammad Siddique filed Intra-Court Appeal against said order towards 11th February, 1989, which came up for hearing before a Division Bench of Lahore High Court and was allowed by an order, dated 24th Novembei, 1993, declaring that petitioner was not qualified for the post of Judicial Member/Chairman Income Tax Appellate Tribunal. It was also observed that petitioner shall cease to hold the office forthwith. Consequently, petitioner was denotified. Petitioner dissatisfied from above referred judgment of the High Court passed in I.-C.A. No,24 of 1989 filed a petition for leave to appeal towards 2nd April, 1994. Anyhow leave was granted vide order, dated 16th March, 1994 and matter registered as Civil Appeal No,238 of 1994. On considering the arguments and relevant case-law, Court through detailed judgment, dated June, 1995 dismissed the appeal, against which present review petition has been filed.
3. Petitioner argued the case with great vehemence and raised following main contentions:
(i) On the date of appointment petitioner was fully qualified and did not suffer from any disability or incapacity;
(ii) Even if there existed any defect with regard to qualification of petitioner for appointment as Member Judicial, Income Tax Appellate Tribunal, the question about such in competency is relatable to date when judgment is quo warranto is announced. Reference was made to
(a) AIR 1954 All 227,
(b) AIR 1975 Delhi 66,
(c) PLD 1986 Lahore 310.
(d) PLD 1991 Lahore 78, and
(e) PLD 1970 SC 98;
(iii) Both Lahore High Court and Supreme Court had no jurisdiction to entertain writ of qua warranto; and
(iv) Scope of review was wide open to consider patent illegalities on the face of record.
4. Deputy Attorney-General, on Court notice, appeared and opposed the petition. He argued that points raised in petition for review were not taken while challenging order of High Court, therefore, same cannot be permitted at this stage.
5. We have carefully perused the record and considered the arguments advanced before us. Firstly, it may be seen that qualifications for appointment of Member, Income Tax Appellate Tribunal are contained in section 133 of Income Tax Ordinance, 1979, which reads as under: "133. Appointment of the Appellate Tribunal.--The Federal Government shall appointment an Appellate Tribunal to exercise the functions conferred on the Appellate Tribunal by this Ordinance.
(2) The Appellate Tribunal shall consist of as many judicial members and accountant members, as may be necessary; ' Provide that the Tribunal shall not be deemed to be invalidly constituted merely by reason of the asbence of a judicial or an accounant memner.
(3) A judicial member shall be a person who has exercised the powers of a District Judge and is qualified to be a Judge of a High Court or who is a person who is or has been an Advocate of a High Court; and is qualified to be a Judge of a High Court (4)
(5)
(6)
(7)
(8)
' The details furnished by petitioner indicate that he at best practised for five and half 5-1/2 years till his appointment as Judicial Member, Income Tax Appellate Tribunal. Initially, petitioner stressed that period of practice at Allahabad having been duly recognised by Provincial Bar Council while allowing enrolment should be deemed and included towards qualification for his appointment.
However, when attention of petitioner was drawn to Article 193(1)(a) where practice for commuting aggregate period was necessarily required before High Court which existed within the territory of Pakistan, this point was not pressed. Petitioner strenuously urged that ten years period concerning qualification of Advocate contemplated by Article 193 (1)(a) was merely relatable to date of his enrolment, and has no nexus with active practice before the Court for purpose of seeking judicial assignment. Reference was also made to observations in cases (i) AIR 1970 SC 106, and (ii) 1978 SCMR 110. Factually, this aspect has been exhaustively discussed and rejected in the impugned judgment, which even otherwise does not suffer from any defect or impropriety. Therefore, in the absence of any ambiguity, same grievance cannot be repaginated merely for the possibility of having different view.
6. Besides, Full Bench of this Court has authoritatively rejected all such misconceptions in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 325), commonly known as 'Judges' case'. Relevant observation in the leading judgment of Mr. Justice Sajjad Ali Shah (the Chief Justice as he then was) appearing at page 409, para. (90), is reproduced below:-- "Under Article 193 the qualifications are specified for appointment as Judge of a High Court. One requirement is that an Advocate is eligible to be elevated only when he has been Advocate of the High Court for ten years. The question arose as to whether it is necessary that such Advocate must have put in ten years of active practice in the High Court or mere enrolment is sufficient.
' We are of the view that for this requirement ten years' practice in the High Court is necessary and mere enrolment as Advocate of the High Court is not enough if the Advocate concerned has not practised in the High Court but has been doing some other job or business and was not in active practice."
7. Similarly, observation made by Mr. Justice Ajmal Mian at Page 510, last sub-para. Of para. 58 reads thus:-- "If we were to read carefully sub-clause (a) of clause (2) of Article 193 of the Constitution, it becomes evident that 10 years' period referred to in sup-clause (a) thereof relates to experience and not the period of enrolment. Under clause (b) thereof not less than 10 years's period is provided for civil servants for being eligible for consideration for appointment as a Judge of the High Court and out of the above 10 years, it has been provided that for a period of not less than three years, he must have served as or exercised the functions of a District Judge in Pakistan. The above sub- clause (b) speaks of actual experience in service and, therefore, if it is to be read with sub-clause (a), it becomes evident that sub-clause (a) also referes to the experience. In any case, it is a matter for consideration by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. They have to decide, whether a particular candidate has requisite experience and once they form the view that the candidate has the requisite experience as envisaged by sub-clause (a) of clause (2) of Article 193, this issue will not be justiciable before the Court of law. The Court cannot sit and decide, whether a particular person has the requisite experience or not? It is matter of subjective satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan."
8. Examining the next question, it is quite obvious that qualifications for appointment of Member Judicial, Income Tax Tribunal, are regulated by law which is subjective condition specified in Article 193 of the Constitution. Therefore, inherent disqualification or disability is not curable by any subsequent eventuality. It .Would be pertinent to mention here that in similar circumstances, appointment of an Advocate in Labour Court was challenged before Balochistan High Court. While allowing Constitutional petition in case Pak Industrial and Mining Syndicate v. Iqbal Muhammad Khan (PLD 1977 Quetta 45), the Division Bench ruled that for want of qualification his basic appointment was totally without lawful authority. In the circumstances reference to case-law quoted by petitioner appears to be inapt. Additionally, this point had not been raised during the appeal as it does not find mention in the impugned judgment. The original appointment of petitioner being void any subsequent development for ratifying the same would not be conducive to public policy. Irrespective of the same the employment of petitioner as Member Judicial, Income Tax Appellate Tribunal, does not correspond to the requirement of qualification for appointment of a High Court Judge as contained in Article 193 of the Constitution. Even otherwise the stand of petitioner directly conflicts with those and spirit of law enunciated in recent judgment of this Court passed in C.P.248-Q of 1997. Relevant observations appearing at pages 389 and 390 (PLD 1996 SC 325) are reproduced below:-- "....From the above discussion, it follows that the recognition of the principle of de facto exercise of power by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of public business, to save the public from confusion and to protect private right which a person may acquire as a result of exercise of power by the de facto holder of the office. However, in the present cases only the acts done and orders passed by respondent No,2 in his de facto capacity of Chief Justice of Pakistan before 26-11-1997 will be protected under the doctrine of de facto exercise of power as on that date he was restrained by a Bench of this Court through a judicial order from exercising any judicial or administrative function as the Chief Justice of Pakistan.
' As a result of the foregoing discussion, we hold that the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan on 5-6-1994 under Article 177 of the Constitution was invalid and unconstitutional being in violation of the well-established Constitutional convention that the senior most Judge of the Supreme Court is to be appointed as the Chief Justice of Pakistan unless for some solid or strong reason, he is held disentitled to the said appointment. Mr. Justice Sajjad Ali Shah, consequently ceases to hold the office of Chief Justice of Pakistan and reverts to the position of a Judge of this Court in accordance with his seniority. We, accordingly, direct the Federal Government to denotify the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan."
9. Broadly speaking, petitioner is mostly raising same points which were earlier decided by this Court in considerable details. With regard to scope of review, petitioner has himself referred to judgment in case Mr. Zulfikar Ali Bhutto v. State (PLD 1979 SC 741). Observations in para. 56 concerning the scope of review are sufficiently instructive and reproduced below:- "We find that these very submissions were made by Mr. Yahya Bakhfiar at the time of the hearing of the appeal, and all these points have been dealt with at length in paragraphs 543 to 555 of the majority judgment; and from the evidence available on the record we have found that Major Fayyaz Haider was a fire-arms expert appointed by the Government and as such the reports signed by him were admissible under section 510 of the Cr.P.C. The contention that the law laid down as to the true interpretation of this section is not correct, or that it has not been properly applied to the facts of this case, does not constitute a valid ground for review, as the conclusions in question have been reached after a full consideration of the arguments advanced on behalf of the petitioner. In execrising the power of review, the Court has no jurisdiction to hear an appeal against its own judgment so as to reverse an interpretation previously given or an inference previously drawn in the judgment under review. For these reasons it would be inappropriate to examine this matter over again by traversing the same grounds as were urged at the initial hearing of the appeal."
' For the above reasons we find no substance in this review petition which is consequently dismissed.