' IHSAN-UL-HAQ CHAUDHRY, J.--It is proposed to decide I.C.As. Nos.167/97, 178/97, 179/97, 256/97 and 316/97 through single judgment as the same have been filed by the parties against the same judgment.
2. The relevant facts are that Pakistan Chest Foundation (Regd.) filed W.P. No,14433 of 1994 against three manufacturers of different brands of cigarettes, Federation of Pakistan through Secretary, Ministry of Information and Broadcasting and 7 others, including the advertisement agencies of P.T.V. And Pakistan Broadcasting Corporation. It was pleaded that the smoking is injurious to health and mostly people at young age start smoking as they are fascinated and tempted to smoking by the colourful advertisements and attractive adds managed by the manufacturers of cigarettes through electronic media. It was prayed that the broadcasting and telecasting of advertisements permitting sale of cigarettes and sponsorship of programmes displaying commercials banners of the cigarette companies by Pakistan Radio and Television are illegal and without lawful authority and the same should be banned. The petition was contested by the respondents. The same was accepted after lengthy hearing vide short order, dated 21-3-1997 while the detailed judgment, dated nil was written and signed subsequently. Three cigarette companies namely, Pakistan Tobacco Company Ltd., Lakson Tobacco Company Limited and R.J.R. Eynolds Tobacco International S.A., filed I.C.A. Nos.167/97, 179/97 and 316/97 respectively while the fourth I.C.A. No,178/97 was filed by Pakistan Television Corporation Limited and its General Manager while I.C.A. No,256 of 1997 was filed by the writ petitioners mainly objecting to the directions contained in paras.10(b) and 10(c) of the short order. All the appeals were admitted to hearing. Notice was issued to the respondents who have appeared.
3. The learned counsel for the appellants in I.C.A. No,167 of 1997 moved an application that the appeals were liable to be accepted on the short ground as there was no legal judgment passed by learned Single Judge in Chamber. It was added that the learned Single Judge retired from service on 3-4-1997, while the detailed reasons were recorded and signed much after his retirement. In this behalf, learned counsel has referred to application, dated 20-5-1997 for inspection of the file which was returned by the office with the remarks that the file was still in the Court of Muhammad Aqil Mirza, J. Therefore, it was clear that the judgment was not written and signed till that date. It was argued that the judgment is defined in section 2(9) of C.P.C. And the short order did not include reasons, therefore, it was not a judgment, while the so-called detailed judgment was written by the learned Judge in Chamber much after his retirement, therefore, it was no judgment in the eye of law. The learned counsel in this behalf referred to Qazi Mehar Din (deceased) v. Mst. Murad Begum and others PLD 1964 SC 446; Nazar Abbas Khan, etc. v. Government of Pakistan etc. PLD 1981 Lah. 237 and Mirza Abdul Hameed and others v. Member, Board of Revenue-II 1986 SCMR 257.
4. Mr. Shahzad Jahangir, Advocate in I.C.A. No,316 of 1997 adopted the above arguments, while Mr. Aftab Ahmad Khan, Advocate, in I.C.A. No,178 of 1997 went on to refer to the judgment of Karachi High Court reported as PLD 1982 Karachi 250 besides relying on the judgments referred to by Mirza Mahmood Ahmad, Advocate.
5. Kh. Saeedu-uz-Zafar, learned Deputy Attorney-General, argued that the principles of law about the judgments argued by the learned counsel for the appellants is not applicable to the present appeals. It was added that the learned Single Judge noted the arguments, recorded the conclusions and issued the directions in the short order, therefore, the same is to be treated as complete judgment and the so-called detailed judgment issued subsequently may be ignored.
The learned Deputy Attorney-General argued that the reasons have also been given in para.8 at pages 8 and 9, therefore, short order is a complete judgment in itself. It was added that in any case it cannot be presumed that the detailed judgment was written and signed by the learned Judge after his retirement. In this behalf, he referred to the Pakistan Shipping Corporation and another v.
Rustam F. Cowasjee and others 1989 SCMR 1332.
6. Mr. A. Karim Malik, Advocate appearing for the writ petitioners argued that it is a usual practice of the superior Courts that the detailed judgments are written subsequently. It was added that the short order which was spread over 12 pages was a complete judgment in itself and the objection raised on behalf of the four appellants is ill-founded and unsustainable. It was argued that the learned Single Judge in Chamber noted the arguments advanced on behalf of the parties, opinion of experts, referred to reports and then he recorded his conclusions in para.9 which are, in fact, his reasoning for the judgment and it was thereafter that the directions were issued, therefore, the short order is a complete judgment and appealable. In this behalf, he referred to Haji Rais Ahmed v.
Aslam 1991 CLC 602.
7. The learned counsel for the appellants while summing up the arguments submitted that the arguments advanced on behalf of the respondents-writ petitioners have been raised in utter disregard of the text of the two orders of the learned Single Judge. It was added that the detailed judgment was even not available at least for four dates fixed in the appeals. The learned counsel in this behalf specifically referred to order, dated 24-4-1997 in I.C.A. No,256 of 1997 in addition to his inspection application. It was argued that the respondents have not pleaded categorically and clearly that the detailed judgment was written and signed by the learned Single Judge before his retirement. On the other hand, the appellants have clearly shown that the same was written afterwards. The learned counsel in the end referred to the judgment in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 to argue that C.P.C. Is applicable to the proceedings in the constitutional petitions.
8. We have given our anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedents referred to on behalf of the parties. The first question for determination is whether the short order, dated 21-3-1997 is a judgment in the eye of law or not? Mirza Mahmood Ahmad, Advocate argued that it was no judgment in the eye of law because the reasons for the decision were not incorporated in the same. He has referred , in this behalf, to the judgments in the cases of Hussain Bakhsh and Haji Rais Ahmed (supra).
9. The learned Deputy Attorney-General as well as Mr. A. Karim Malik, Advocate in fact have no cudgel with the legal proposition that an order to attain the status of judgment should contain the reasons on which the conclusions were based but they tried to meet the preliminary objection with the submission that this principle was not attracted in the present appeals. The learned Deputy Attorney-General argued that the reasons were recorded in para.8, pages 8 and 9 starting with the following words:-- "A few good reasons for supporting a tobacco advertising ban are given.........................................................................................................................................
' But the perusal of the judgment shows that these are not the reasons of the learned Single Judge in Chamber but this is, in fact, the reproduction of the views of the World Health Organization which started from the bottom of page 6 and ended at page 9. The arguments of Mr. A. Karim Malik, Advocate were slightly different. He referred to para. 9, pages 9 to 11, to argue that the learned Single Judge has given the reasons in the short order as well. The argument is again misconceived because these are only the conclusions tabulated by the learned Single Judge in Chamber without giving the reasoning on the basis of 'which these conclusions were arrived at.
10. Now coming to other factors. The learned Single Judge himself has styled the order, dated 21-3- 1997 as short order as is clear from the following expressions appearing at the end of para. 1:-- "... ... ...Is decided by the Short order."
' And thereafter at the end of para. 7 following remarks were made:- "7. ... ... ...The full account of the contentions raised by the learned counsel for the parties shall be dealt with in the detailed judgment."
' This is not all Again para. 44 at page 82 of the detailed order starts as under:-- "44. The above are the detailed reasons in support of the short order dated 21-3-1997 whereby the writ petition has been accepted with the following directions:--
11. The order dated 21-3-1997 is without any reason in favour of the relief granted and declarations made, therefore, it cannot be treated as judgment in the eye of law. The High Court although also exercises civil jurisdiction but itself is not a Civil Court. The C.P.C. Regulates all civil proceedings, including proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 relating to civil matters which governed by the provisions of C.P.C. Other than those are specifically excluded. In this behalf, reference can be made to judgment in the case of Hussain Baldish (supra).
The judgment has been defined in section 2(9), C.P.C. As under:- "(9) "judgment" means the statement given by the judge of the grounds of a decree or order:"
' The contents of the judgment have been dealt under Orders XX and XLI, C.P.C. The judgment comes into existence after the same has been reduced into writing and signed by the Presiding Officer. The contents of the judgments are contained in rule 4(2) of Order XX, C.P.C. The same reads as under:-- "Judgments of other Courts.--(2) Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision."
The most important ingredient of a valid judgment is the reasons or grounds for decision because the validity of the judgment in the higher forum is to be seen from the reasoning and the same is to be challenged by the aggrieved party again with reference to the reasons. In other words, the aggrieved party is to attack the reasoning of the judgment in appeal and not the narration of the facts. The conclusions arrived at by the Court will not be binding without reasoning, therefore, the Courts insist that even in ex parte judgments reasons should be clearly given. We may refer to the judgment in the case of Kalu Sarang and others v. Mt. Abedannessa Khatun AIR 1926 Cal.
1221. The matter can be looked from another angle, namely, that it is a cardinal principle of justice that justice should not only be done but should be seem to have been done. The reasoning is also necessary to satisfy this most important principle of dispensation of justice. The Court acts with material irregularity and illegality if it fails to record reasons in support of its conclusions. The accumulative effect of section 2(9), Order XX, Rule 4 and Order XLI, Rule 31, C.P.C. Would be that decision by a Court to be termed as judgment must be based on reasons and failure to comply with this requirement would render the judgment nullity and unsustainable. The Hon'ble Supreme Court has noted the ingredients of a valid and legal judgment with reference to the provisions of law in the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736. The relevant portion reads as under:--, " 'Judgment' has been defined in section 2, clause (9) of the Civil Procedure Code as 'judgment' means 'the statement given by the Judge of the grounds of a decree or order' and Order has been defined in clause 14 of the same section as 'formal expression of any decision of a Civil Court which is not a decree'. Further, Order XX, Rule 4, sub-rule (2) prescribed that judgment of Courts other than the Court of a small causes 'shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision' ... ..."
' Reference is also made to the judgment in the case of Mst. Fatima v. Khuda Bux and others PLD 1959 (W.P.) Lahore 826. The relevant portion reads as under:- "31. ..Order XX, Rule 4, C.P.C. Provides that judgments of Courts other than a Court of Small Causes shall contain a concise statement of the case the points for determination, the decision thereon and the reasons for such decision. Similarly Order XLI, Rule 31, C.P.C. Provides that a judgment of the Appellate Court shall state--- "(a) the points for determination;
(b) the decision thereon; and
(c) reasons for the decision."
' The reasons for the decision on the points involved in the determination of an appeal must of course be based on the evidence on the record and the provisions of law applicable to them. ... "
' Now we refer to the judgment in the case of Muhammad Siddiq v. Syed Ali Shah and another PLD 1976 Lah.
293. The relevant portion reads as under:-- " ... ...The learned counsel for the parties have appeared and they agree that in the absence of the detailed order the short orders cannot be said to have disposed of the suits. I have also considered this matter on legal plane. It is well-settled that when a Civil Judge decides a case without giving reasons in the judgment, he acts with material illegality and irregularity in the exercise of jurisdiction vested in him by law. See Muhammad Arif and others v. Muhammad Ishaq and another AIR 1937 Lah.
352. In Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173, where the order was 'the application is rejected as there is no substance in it', the Supreme Court observed that: ' There is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its context. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying, 'there is considerable substance in the petition which is accepted', should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the Law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with its painful results, that justice has neither been done nor seems to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached.
' The same is the law contained in Order XX read with section 33 of the Code of Civil Procedure. In the face of the aforesaid legal position, I hold that the learned Civil Judge acted with material irregularity and illegality in the exercise of his jurisdiction by not writing the detailed reasons with reference to which he passed the short orders. As a matter of fact, even if the short order is a judgment or a part of a judgment, then it is incomplete as its corresponding part, which was to be separately written, was not written at all. The short orders or judgments on the peculiar facts and circumstances of these cases are thus not well-sustained and are a nullity ... We may also refer to the judgments in the cases of Ghulam Rahullah Khan v. Amir Sher Bahadar Khan and 142 others 1990 CLC 1883; Haji Muhammad Shafi v. Custodian, Evacuee Property, Muzaffarabad and 3 others 1989 CLC 222; Government of N.-W.F.P. And 2 others v. Shah Alam 1989 CLC 1542; Haji Hayat Gul and 2 others v. Mufti Ghazi Khan and 2 others 1989 CLC 2372; Mistri Muhammad Hassan v. Haji Said Muhammad and another 1986 CLC 1241; Sub. (Retd.) Muhammad Karim and another v. Abdul Rashid and others 1981 CLC 71; Haji Abdul Baqi and another v. Muzaffar Ali Khan and another PLD 1978 Quetta 56; Abdul Ghani v. Haji Saley Muhammad PLD 1960 (W.P.) Kar. 594; M/s. Kuldip Oil Industries Ltd. v. Ch. Pratap Singh AIR 1959 Allahabad 505; Sabharaj and others v. Mahesh Narain and others AIR (35) 1948 Oudh 27; Muhammad Arif and others v. Muhammad Ishaq arid another AIR 1937 Lah. 352; Harbhagwan and others v. Ahmad and others AIR 1922 Lah. 122 and Kamat v.
Kamat and another 8 ILR 368 on this issue.
12. The next question for determination is whether detailed order was made and signed by the learned Single Judge in Chamber before his retirement or afterwards? I.C.A. No,167 of 1997 came up for hearing on 27-3-1997 and it was noted that the details of the judgment of the learned Single Judge were not available. Thereafter, on 24-4-1997 in I.C.A. No,256 of 1997 the learned Division Bench noted that whether in the absence of detailed reasoning the short order can be considered in law to be a judgment disposing of the case while in the next para. Of the same order the request of Mr. A. Karim Malik, Advocate was noted and opportunity allowed to enquire as to whether, in fact, learned Single Judge had recorded the detailed reasonings or not? The office was also directed to submit a report on this aspect of the matter.
13. Mr.A. Karim Malik, Advocate very candidly submitted that nothing can be definitely said as to when the detailed reasons were recorded. The office has not submitted the report. However, the report made on the inspection application of Mirza Mahmood Ahmad, Advocate, by the office as late as 20-5-1997 reveals that the file was in the Court of Mr. Justice Muhammad Aqil Mirza. There was no purpose in keeping the files by the staff in the Court Room after the learned Single Judge in Chamber retired on 3-4-1997. The known practice is that after a learned Judge retires or relinquishes the charge to assume some other office the files are forthwith returned to the office because with the retirement or relinquishment of the office the Court ceases to exist. This is not all.
The learned Judge admittedly retired on 3-4-1997 and when the learned Division Bench passed order on 24-4-1997 the detailed reasons were not available. The practice of processing and fixing the I.C.A. Is that the original file is tagged with the I.C.A. File, whereas in this case the learned Division Bench was asking for the detailed reasons but the same were not forthcoming, therefore, we have no doubt whatsoever in our mind that the detailed reasons were recorded much after 3-4-1997.
The learned Single Judge neither could legally record any such reasons nor could sign the same as Judge of this Court after 3-4-1997. We may refer here to the following judgments relied in support of the objection:-- "(i) Oazi Mehar Din (deceased) (supra): This objection was taken in the High Court that the judgment which was pronounced by the learned Single Judge had been written and signed by him after he had handed over charge and had become a Minister of Bahawalpur Estate. It was, therefore, urged that the same judgment was not a valid pronouncement. The legal objection was accepted and order of the Division Bench was set aside with the result that the first appeal in the High Court was deemed pending. The relevant portion of the judgment reads as under:-- ... The cases, therefore, in which judgments written by a person after transfer or on leave, were held to be valid, would not be sufficient authority for the view that a judgment written by a Judge who had ceased to hold his office would also be immune from exception. Such a view has potentialities of great mischief and if by reasonable construction of the statutory provision it could be avoided, the result would most probably be in conformity with the intention of the Legislature. I am, therefore, disposed to think that the narrower construction of Order XX, Rule.2, C.P.C. Should be adopted and it should be held that a Judge who has become functus officio, after being relieved of his office, should not be allowed to have anything to do with the judicial work of the Court over which he previously presided... ... .."
(ii) Mirza Abdul Hameed and others (supra): Constitutional petitions were heard by the then Chief Justice, High Court of the Balochistan, Quetta but signed the judgments while acting as Governor of the Province and got the same announced through another learned Judge. The Hon'ble Supreme Court set aside the judgment and ordered rehearing of all the Constitutional petitions. The relevant portion of the judgment reads as under;-- '7. ... ... ...These provisions leave no manner of doubt that the Chief Justice of a High Court when he has been appointed and takes over the functions of the Governor of the Province vacates the office of the Chief Justice. After vacating the office of the Chief Justice, the Governor could not discharge the functions of that office. The signing of a judgment, the act of imparting to written words the finality and .Efficacy of a legal instrument, its pronouncement in open Court are all functions dischargeable only by a Judge and by none else. The Chief Justice, while acting as Governor of the Province, having for the time being vacated the judicial office, could not perform that function nor get it performed through another Judge of the High Court.'
(iii) Nazar Abbas Khan etc. (supra): The broad question in this case was whether a Judge, who was no longer attached to the High Court can write or sign a judgment and whether the result was orally announced or reserved at the time of hearing. The Division Bench of this Court examined the case-law as under:- '17. Again, as stipulated in the High Court Rules and Orders, a judgment is to be delivered by the Judge or Judges who heard the case and it has to be signed and delivered before it becomes operative. In Rukan Din v. Hafiz-ud-Din PLD 1962 Lah. 161 a Division Bench of this Court held that a judgment pronounced orally by the High Court without any note being signed or pronounced can be subsequently altered after rehearing. In Mahboob Ali v. Syed Qamar Ali 1972 SCMR 109 the oral acquittal of the accused by a Magistrate who died without writing any judgment, was held to be a nullity. In Muhammad Bashir v. Muhammad Hussain 1977 PCr.LJ 526 the judgment typed out but neither corrected, signed nor delivered by the Presiding Officer purporting to have disposed of the matter was held to be void.
19. The Courts of foreign jurisdiction have also taken the same view. Reference be made to Corpus Juris Secundum, Vol. 48 at p.1011, section 47 states:-- 'The elevation of a Judge to a higher Court terminates his right to exercise any of the functions of the Judge of the lower Court. The jurisdiction of a Judge which is lost by his temporary appointment as member of an appellate Court is restored on revocation of such appointment.'
' Concerning the property of office it is recorded:-- 'It is the duty of a Judicial Officer on the expiration of his term to surrender to his successor the property of the office which the law commits to his custody. The duty is merely ministerial. The person holding the certificate of election being prima facie the Officer is prima facie entitled to the records of the office in advance of the result of an election contest.'
' Section 55 of the same Volume at p.1018 says:-- 'A person appointed to fill the vacancy in the office of a Judge is usually endowed with the powers that belong to the occupant of the office. During the period of his incumbency he is considered a Judge de jure.'
' Under Note 60 at p.1019 it is recorded:- 'Trial Judge's death after making oral announcement of views at conclusion of trial caused mistrial and succeeding Judge could not properly enter judgment on basis of oral announcement' ."
' And thereafter answered the above legal question as under:-- "21. In view of the above, the oral pronouncement, or written opinions sent in after the learned Judges stood elevated to the Supreme Court, either as acting or ad hoc Judges, are no judgments in the eye of law. The Writ Petitions 1559 and 1560 have rather been sent back as undecided, for rehearing. All the above cases shall, therefore, be deemed to be pending decision in this Court.
However, if record of any such cases are not available their files may be reconstructed in accordance with law."
' The judgment in the case of the Pakistan Shipping Corporation and another (supra) relied by the learned Deputy Attorney-General is not relevant because in that case the assumption that the judgment was written by the learned Chief Justice after having left the Court was based on the date appearing on the blue slip, which was written by a functionary associated with the Court while certifying that the judgment was approved for reporting. The same is the position of the judgment of this Court reported as Sh. Abdul Haq & Sons Ltd. v. The Punjab Industrial Development Board, Lahore and 3 others PLD 1991 Lah.
427.
14. The upshot of the above discussion is that the short order dated 21-3-1997 is no judgment in the eye of law because it did not contain the reasons on the basis of which the decision was made, while the detailed order having been passed by the learned Single Judge after his retirement on 3- 4-1997 is legally no judgment as well. The result is that this appeal is accepted, the two orders are set aside and. W.P. No,14433 of 1994 would be deemed to be pending for decision.
' No order as to costs.