' IRSHAD HASAN KHAN, J.--A Bench comprising two of us, namely, Irshad Hasan Khan, J. And Khalil- ur-Rehman Khan, J., took cognizance of this Constitutional petition filed under Article 184(3) of the Constitution by order dated 26-11-1997, whereby the petition was admitted to regular hearing to examine the contentions of paramount public importance raised in the petition with notice to the respondents for today as well as the learned Attorney-General for Pakistan as contemplated under Order XXVII-A, Rule 1, C.P.C. Meanwhile, operation of the Notification dated 5th June, 1994 issued by the respondent No,3, in pursuance of Article 177 of the Constitution, appointing Mr. Justice Sajjad Ali Shah as Chief Justice of Pakistan, was held in abeyance subject to notice for 28-11-1997. It was also directed that Mr. Justice Sajjad Ali Shah shall cease to perform judicial and administrative functions and powers of the Chief Justice of Pakistan till further orders subject to notice for the aforesaid date.
2. It may be stated that an information was received by the senior Judge (Irshad Hasan Khan, J.) that the Assistant Registrar (Q) of this Court does not entertain petitions in the relevant register on the date of filing the same. On 26-11-1997, the Assistant Registrar (Q) was sent for in the Chambers to enquire whether any petitions were lying with him which were not duly diarized in the relevant register. He submitted that some petitions were received by him on 25-11-1997 but the same were not entered in the relevant register. He was, therefore, directed by one of us, Irshad Hasan Khan, J.
To bring all the relevant resisters for examination which were duly brought and he entered at those petitions in the relevant registers at about 11-30 a.m. Which were received by him on 25-11-1997. He was also admonished that in future he must enter the particulars of the cases filed with the Registry on date of their presentation. Mr. Justice Khalil-ur-Rehman Khan was also sitting in the Chambers of Irshad Hasan Khan, J. When Mr. Muhammad Aslam Chishti, Senior Advocate Supreme Court alongwith Mrs. Ashraf Abbas, Advocate-on-Record, for the petitioner, met one of us and presented the Constitution petition in chambers as the Assistant Registrar (Q) was not entertaining the same. On query, the Assistant Registrar informed one of us, Irshad Hasan Khan, J., that although there are no written instructions of the Honourable Chief Justice for not entertaining Constitutional petitions under Article 184(3) of the Constitution but, as per practice generally followed, such petitions are to be filed at the main Registry, Islamabad. The Assistant Registrar was, however, directed to entertain the petition and diarize it in the relevant register and place it before Court for appropriate orders. This order was duly complied with by the Assistant Registrar (Q).
3. Needless to observe that the administrative orders of the Chief Justice or the procedure laid down in the Supreme Court Rules cannot curtail or limit the jurisdiction conferred on a Judge of the Supreme Court/Bench of the Supreme Court by constitution and law and a Bench taking cognizance of a petition can exercise such jurisdiction throughout Pakistan at any Registry. Refer the case of Syed Ahmed Rizvi v. The State PLD 1995 SC 500. Reference may also be made to a similar Constitution Petition bearing No,1-P of 1997 (1997 SCMR 115) under Article 184(3) of the Constitution which was taken cognizance by a Bench of the Supreme Court at Peshawar comprising Mr. Justice Saiduzzaman Siddiqui, and Mr. Justice Fazal Ilahi Khan. In the precedent case it was observed that the provisions of Order XXV of the Supreme Court Rules framed under Article 191 of the Constitution regulatory in nature and they do not affect the jurisdiction of the Court which is conferred under Article 184(3) of the Constitution.
4. At about 6-00 p.m. On 26-11-1997, the Assistant Registrar (Q) brought copy of an administrative order passed by the Chief Justice requisitioning record of this case which order had been received through fax. It also contained the following directions:-- "The Honourable Judges present at Quetta Registry have acted without lawful authority and in such circumstances I direct the Assistant Registrar Quetta Registry not to fix cases before them for disposal until further orders."
' The A.R.(Q) was asked to come back after some time so that the matter may be brought to the notice of all the learned members of the Bench, who are residing in the Rest House, namely, Mr. Justice Nasir Aslam Zahid and Mr. Justice Khalil-ur-Rehman Khan. After some time, Mr. Muhammad Aslam Chishti, Senior Advocate Supreme Court alongwith Mrs. Ashraf Abbas, Advocate-onRecord, for the petitioner, brought an application to the Rest House and sought permission to see one of us Irshad Hasan Khan, J. For presenting the said application. As all the members of the Bench were available in the Rest House it was directed that the matter be placed before the Bench immediately for hearing in the Rest House. The contents of the application are as follows:-- "In C.P. No,248-Q of 1997 filed by the petitioner which was fixed today in Court orders were passed admitting the petition for regular hearing and issuing notices to the respondents. In para. 9 of the order passed by this Court it was directed as follows:-- ' Notice be also issued in the application for interim relief, Meanwhile, operation of the Notification dated 5th June, 1994 issued by respondent No,3 in pursuance of Article 177 of the Constitution appointing respondent No,2 as Chief Justice of Pakistan is held in abeyance until further orders and subject to notice for 28-11-1997. Resultantly, respondent No,2 shall cease to perform judicial and administrative functions and powers of the Chief Justice of Pakistan till further orders subject to notice for the aforesaid date.
' Syed Sharifuddin Pirzada, Senior Advocate Supreme Court has been asked to assist the Court as amicus curiae on 28-11-1997 at Quetta.
' In the English News at 6-30 p.m. On P.T.V., a report about this petition and the order passed thereon was mentioned but thereafter it was further reported that the Hon'ble Chief Justice (under suspension) as directed that the record of this petition may be called immediately from the Quetta Registry and to be placed before him for orders and in the meantime if any order had been passed on that petition they would be deemed to have not taken effect for the reason that proper procedure had not been followed.
' It is respectfully submitted that the aforesaid order of the Hon'ble Chief Justice (under suspension) is nullity in law and are of no legal effect. It is respectfully pointed out that the Hon'ble Chief Justice (under suspension) is a respondent in the petition against whom various allegations of misconduct of very serious nature have been made and his appointment and continuance as Chief Justice has also been called into question in view of the Constitution, Law and the Judgement of the Supreme Court in the Judges' case PLD 1996 SC 324.
' It is therefore, prayed that this Hon'ble Court may be pleased to declare the said executive order of the Hon'ble Chief Justice (under suspension) as nullity and liable to be ignored."
5. We heard the learned counsel for the petitioner and passed the following order:-- "This application has been presented in the Judges' Rest House at Quetta this evening. The Assistant Registrar, Quetta, is present. He has placed on record the faxed copy of the orders received by his office. He adds that he has been conveyed the instructions of Mr. Justice Sajjad Ali to present this order at the Rest House.
2. We have gone through the order and in view of urgency of the matter, have heard Mr. Muhammad Aslam Chishti, learned counsel for the petitioner, at some length in support of the instant application which is self-explanatory. The position has been correctly stated in the application. We deem it fit and proper to declare that the impugned executive order of the Hon'ble Chief Justice (under suspension) is nullity and is to be ignored. The order passed by a Bench of two Hon'able Judges of this Court at Quetta today, in C.P. No,248-Q of 1997 still holds the field and is hereby reiterated and confirmed.
3. The application is disposed of accordingly."
6. Around 8-00 p.m. On 27-11-1997, a telephone call was received from Mr. M.A. Farooqui, Additional Registrar (Judicial), Supreme Court, Islamabad, informing that an order had been passed by a Full Bench of the Supreme Court headed by the Honourable Chief Justice and that the order passed in the present petition on 26-11-1997 has been stayed. He further informed that the order had been passed by a majority of 4 to 1. The Additional Registrar was directed to send a copy of the order through fax and late at night an incomplete copy of the order passed by the Full Bench was received. The copy contains only the order passed by 4 Judges, namely, Mr. Justice Sajjad Ali Shah, H.C.J., Mr. Justice Muhammad Bashir Jehangiri, Mr. Justice Ch. Muhammad Arif and Mr. Justice Munir A. Sheikh. The copy of the order passed by the dissenting Judge, Mr. Justice Mamoon Kazi, was not sent on the ground that the learned Judge has not written his dissenting note.
7. The faxed copy of the note of the 4 learned Judges (including the Honourable Chief Justice) dated 27-11-1997, inter alia, refers to the earlier administrative order passed by the Honourable Chief Justice on 26-11-1997 and that in the said order of the Honourable Chief Justice it was directed that orders passed by the Bench at Quetta in this petition shall be deemed not to have taken effect for the reason that the proper procedure had not been followed. In this context it may be repeated that by an order passed in the evening of 26-11-1997, on the application of the petitioner another judicial order had been passed making it clear that the said administrative order of the Honourable Chief Justice (under suspension) was a nullity in law and the said second judicial order passed in the evening of 26-11-1997 by all the three Judges holding Court at Quetta, held that the earlier order passed in the morning in this petition (C.P. No,248-Q of 1997) still holds the field and is hereby reiterated and confirmed. As a consequence, there is an existing order in the field passed by two Judges of this Court of Quetta Bench in this petition suspending the notification of appointment of the Honourable Chief Justice and restraining him from performing any administrative or judicial functions as Chief Justice. The note of the 4 Judges, inter alia, states as follows:-- "In any case, finally order is passed that the orders passed by the Bench of this Court at Quetta are not to be given effect to as the matter would be heard at the Principal Seat as directed earlier. The objections raised by a number of lawyers with regard to the constitution of the Bench and the request that the Chief Justice should not sit on the Bench have been taken notice of which would be decided later at the proper stage. This order is passed by majority of four to one as one of us, namely, Mr. Justice Mamoon Kazi, has not agreed to the above order."
It is apparent from a bare perusal of the above note of all the four honourable Judges of this Court that it is merely a confirmation of the earlier administrative order passed by the Honourable Chief Justice (under suspension) who earlier administrative order dated 26-11-1997 has already been held to be a nullity and liable to be ignored. Thus, the above note of four Judges, neither being a judicial order and only confirmatory of an administrative order already held to be a nullity, is of no consequence.
8. It may additionally be observed here that the orders passed by three Judges of the Quetta Bench find support from another judicial order passed on 27-11-1997 by two Judges of this Court holding Court at Peshawar. Viewed from this angle, an order passed on the judicial side by three Judges together with another order of two Judges cannot be affected, overruled, varied or suspended in any manner whatsoever by 4 Judges of this Court including one of them namely Honourable Chief Justice (under suspension).
9. It is considered appropriate here to reproduce para. 3 of the order passed by the Peshawar bench of this Court on 27-11-1997, which reads as follows:-- "3. There is an interim application in this case for grant of an injunction restraining the Hon'ble Chief Justice of Pakistan from performing his functions. In our view, it is not necessary to pass an order on this application for the reason that a similar order has already been passed by a Bench of this Court at Quetta, whereby the appointment of the Hon'ble Chief Justice has been suspended and in consequence thereof, he is unable to perform his functions as such. However, it has been pointed out by the petitioner, who is a senior counsel of this Court that in spite of the order passed by the Quetta Bench, the Hon'ble Chief Justice through an administrative order, has suspended the operation of the order passed by the Quetta Bench of this Court. We are unable to assimilate this contention as the Hon'ble Chief Justice is himself a respondent in the petition in which the Bench at Quetta has passed interim order and in consequence,thereof he has been restrained from passing any judicial or administrative order in his capacity as the Chief Justice of Pakistan. However, it is open to the petitioner or any other affected party to raise this plea before the Bench hearing such petitions. Since the Hon'ble Chief Justice, as a consequence of the order passed by the Quetta Bench of this Court, will not be in a position to discharge his judicial or administrative functions, a direction is sought to be issued to the Registrar of the Supreme Court of Pakistan that he should place all these cases for consideration before the senior puisne Judge, Mr. Justice Ajmal Mian, and obtain orders from him accordingly. Since these cases involve a very important question, in our view, it will be appropriate that this matter alongwith other similar matters, be placed before the Full Court constituting all the Judges of Supreme Court except the Hon'ble Chief Justice of Pakistan, who is a respondent in the petition, for an authoritative pronouncement on the subject. The Registrar, Supreme Court of Pakistan, is accordingly, directed to take immediate steps and place the matter forthwith before the learned puisne Judge, Mr. Justice Ajmal Mian, at Karachi and obtain appropriate instructions for constitution of the Bench for hearing of these cases."
9. Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, who has been asked to act as amicus curiae in this petition as well as the learned Attorney-General as also learned counsel for the petitioner supported the earlier order dated 26-11-1997 passed by this Court.
10. Mr. Muhammad Aslam Chishti reiterated the submissions made by him earlier at the time of admission of the Constitutional petition.
11. The learned Attorney-General for Pakistan referred to the order dated 27-11-1997 (supra) passed by the Peshawar Bench of this Court. He also referred to rule 7 of Order XXXIII of the Rules to contend that a mere irregularity in compliance of the rules shall not nullify the proceedings or the judgment of this Court. His precise submission was that admission of the Constitutional petition by this Court was valid and in any case, even if it is assumed but not conceded that there has been a failure to comply with the provisions of Order XXV of the Supreme Court Rules which contemplates that an application for enforcement of fundamental rights under Article 184(3) of the Constitution may be entertained in the main Registry, the mere technical noncompliance or irregularity shall not nullify the proceedings or the judgment. He next contended that the orders passed by the learned Chief Justice in his administrative capacity whereby the judicial order passed by this Court was held to be without lawful authority, was itself a nullity. The same is the case with the note recorded by a Bench of five Judges on the administrative side, in that, an administrative order cannot nullify an order passed on the judicial side, which could only be varied in the same judicial proceedings either by way of review or by reconsideration by the same Bench or by a larger Bench including the members of the learned Bench who passed the judicial order sought to be reviewed.
The learned Attorney-General as well as Mr. Muhammad Aslam Chishti also relied on Ataur Rehman v The State PLD 1967 SC 23, to contend that the decision rendered by this Court was binding on all Courts although there is a possibility of reconsidering in a future proper judicial case the Court's view on point of law expressed in earlier case. The learned Attorney-General submitted that there is no parallel in the judicial history of this country where a judicial order has been set aside through an administrative order by the Chief Justice.
12. Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, appearing as amicus curiae, highlighted the history and scope of Order XXV of the Supreme Court Rules. He submitted that the office order was issued on 19-11-1981 by the Chief Justice when fundamental rights were suspended and as such no petition could be entertained in the Supreme Court in view of the promulgation of the Provisional Constitution Order dated 24th March, 1981. He further pointed out that fundamental rights stood already suspended, when Martial Law was imposed in the country as well as through the Laws (Continuance in Force) Order, 1981. Notwithstanding the provisions, the Supreme Court used to entertain the petitions at its various Registries, although fundamental rights stood suspended till the revival of the Revival of Constitution Order, 1985. In these circumstances the order providing for entertainment of the petitions at the principal seat through an administrative order of the then Honourable Chief Justice dated 19th November, 1981 was passed to avoid difficulties in respect of entertainment of the petitions. His submission was that the order dated 19- 11-1981 was purported to be passed by the ,then Honourable Chief Justice to control the petitions filed against Martial Law Orders.
13. In so far as the Supreme Court Rules purporting to prohibit the entertainment of petitions under Article 184(3) of the Constitution is concerned Syed Sharifuddin Pirzada respectfully submitted that the Rule is itself repugnant to Article 25 of the Constitution. These Rules cannot override the Constitution. He argued that there was no basis for holding that petitions under Article 184(3) of the Constitution can only be filed at the principal seat. Mr. Pirzada emphasised that if the very basis is lacking the superstructure raised over it falls to the ground. Reliance was placed on Muhammad Aslam Zia's case PLD 1958 SC (Pak.) 104, He next contended that the order passed by this Court was a judicial order and, whether it was right or wrong, was not open to challenge through an administrative order of the Chief Justice. He submitted that a judicial order can only be challenged either in review or through reconsideration at the instance of the parties affected by the order sought to be reviewed. No right of appeal is available against the order passed by this Court on the judicial side, therefore, the purported order of the Chief Justice as well as the other honourable Judges of this Court does not affect the validity and existence of the order passed by this Court on the judicial side. Mr. Pirzada however, supported the minority note of our learned brother Mamoon Kazi, J., on the administrative side, as published in daily Dawn, Karachi dated November, 28, 1997, which is in the following terms:- "Senator Iqbal Haider of P.P.P. Rose to defend Chief Justice Sajjad Ali Shah. He said the order of the Division Bench of the Supreme Court at Quetta was not proper, and Justice Sajjad Ali Shah was still the Chief Justice.
' He said if the decision was upheld, would set a precedent and no body would accept the administrative authority of the Chief Justice.
' Justice Mamoon Kazi inquired of Syed Iqbal Haider who would decide which order by the two- member Bench or by Chief Justice Sajjad Ali shah was proper. He observed that two Judges said the Chief Justice was dismissed and the Chief Justice was declaring their order as coram non judice. He opined that the matter should be decided by the Full Court or a larger bench."
14. Mr. Sharifuddin Pirzada next argued that the Supreme Court Bench at Peshawar has adopted, by incorporation, the order passed by this Court,therefore, the judicial orders passed by two separate Benches of Supreme Court can only be varied, reviewed or set aside by the same Benches through appropriate judicial proceedings and not through administrative orders. He emphasised that a Bench of the Supreme Court while holding the Court at Peshawar has interpreted the provisions of Order XXV of the Supreme Court Rules. It is a judicial interpretation and till it is varied in appropriate judicial proceedings it prevails. He further submitted that the Constitutional petition has been validly and competently entertained by the Quetta Bench. On these grounds it was submitted that there was no impediment in entertaining the petition and passing such order as the Court may deem fit. Mr. Pirzada fully endorsed the directions issued by the Peshawar Bench for hearing the case by the Full Court as the matter requires an authoritative decision. He also referred to the case of Federation of Pakistan v. Aitzaz Ahsan and another PLD 1989 SC 61, wherein a Bench presided by Muhammad Haleem, C.J. And 11 other honourable Judges of the Supreme Court observed:-- "It is a well-settled principle of Constitutional interpretation that until a law is finally held to be ultra vires for any reason it should have its normal operation."
15. After hearing learned counsel, the learned Attorney-General and Syed Sharifuddin Pirzada, learned amicus curiae, we direct that as soon as orders are passed in the light of the orders of the Peshawar Bench of this Court in C.P. No,1-P of 1997 constituting a Bench of the Full Court minus the Honourable Chief Justice (under suspension), the file of this case may be sent to the principal seat or at the Registry where the Full Court will hold its sitting.
16. On the question of interim relief, the learned counsel for the petitioner, the learned Deputy Attorney-General as well as Mr. Shairfuddin Pirzada, amicus curiae are of the view that the interim orders be passed restraining the Chief Justice (under suspension) from performing administrative or judicial functions till further orders by the Full Court minus the Honourable Chief Justice. We agree and pass .
(Sd.)
Irshad Hassan Khan, J.
(Sd.)
Nasir Aslam Zahid, J.