' SAIDUZZAMAN SIDDIQUI, J.---The abovementioned review petitions have been filed by the petitioner seeking review of judgment of this Court in Constitutional Petitions Nos.248-Q, 1-P and 55 of 1997, dated 23-12-1997. The petitioner is represented by Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court in Civil Review Petitions (C.R.P.) No.2 while Mr. Ahmad Raza Khan Kasuri, Advocate Supreme Court, appeared for the petitioner in C.R.P. No.3 of 1998.
2. Mr. Abdul Hafeez Pirzada, the learned Senior Advocate Supreme Court, for the petitioner, raised the following contentions in support of the review petitions:--
(i) That the Constitutional Conventions have no place in a written Constitution, unless the convention is expressly adopted/recognised by the Constitution. Therefore, the English practice based on conventions, has no application in Pakistan, which is governed by a written Constitution.
(ii) That this Court declared the appointment of petitioner as the Chief Justice of Pakistan, unconstitutional on the basis of a convention which required the appointment of the senior most Judge of this Court as the Chief Justice of Pakistan. This reasoning in the impugned judgment, according to learned counsel, resulted in an error which is manifest on the face of judgment, inasmuch (a) firstly, no such convention in fact existed; (b) and secondingly, if such a convention did exist then according to the opinion of all leading jurists on the Constitutional Law, such convention has only a moral force, which could give rise to criticism for such breach of the convention but it could not be enforced through the process of a Court of law.
(iii) That the judgment in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) needs reconsideration as the said judgment did not properly consider the effect of conventions in a case governed by a written Constitution.
(iv) That the convention even if once violated/broken loses its validity/binding force. The convention relied by this Court in declaring the appointment of petitioner as the Chief Justice of Pakistan unconstitutional, was observed more in breach by the Constitutional functionaries in respect of the appointment of Judges of superior Courts, than its strict observance.
(v) That the convention to appoint the senior most Judge of this Court as the Chief Justice of Pakistan, was declared binding through the impugned judgment, which applied prospectively to the future appointments and, therefore, the appointment of petitioner which was made prior to the date of impugned judgment, could not be declared unconstitutional on the basis of the said convention.
(vi) That the direction of this Court to notify the appointment of a named judge of this Court as the Chief Justice of Pakistan, amounted to usurpation of the power of President vested under Article 177 of the Constitution to appoint the Chief Justice of Pakistan, which was not permissible.
(vii) That the doctrine of de facto exercise of power was not applicable to the Constitutional appointment.
(viii) That the observations of this Court that it has the jurisdiction under Article 184(3) of the Constitution to restrain a judge of superior Court to discharge his functions as a Judge, needs reconsideration, as this observation is likely to open a door for ominous proceedings in future undermining the dignity of institution and destroying the comity amongst the judges of superior Courts.
(ix) That this Court while declaring that under the established constitutional convention, the senior most Judge of this Court has to be appointed as the Chief Justice of Pakistan, left the issue regarding exercise of power by the President to appoint the Chief Justice of Pakistan directly from outside the Judges of this Court, unattended, although a specific argument was raised in this behalf during the course of hearing of the Constitutional petitions. This omission, according to learned counsel, has the effect of keeping the controversy regarding appointment of Chief Justices of superior Courts very much alive leaving room for such controversies to arise in future The issue regarding power of the President to appoint Chief Justices of superior Courts directly outside the strength of the Judges of the Court, therefore, according to learned counsel, should be decided now in order to settle this controversy as well, once for all, specially keeping in view the provisions of Article 187 of the Constitution which requires this Court to do complete justice in a case before it.
3. Mr. Sahibzada Ahmad Raza Khan Kasuri, the learned Advocate Supreme Court for the petitioner in C.R.P. 3 of 1998, adopted the above arguments of Mr. Abdul Hafeez Prizada and further contended that to preserve the image of the institution and to close the unpleasant chapter concerning the appointment of petitioner as the Chief Justice of Pakistan in a befitting manner the petitioner be declared retired from the office of Chief Justice of Pakistan from 26-11-1997, the date on which he was restrained from discharging his functions as the Chief Justice of Pakistan. The learned counsel stated that he is advancing this last mentioned contention with full responsibility after having consulted the petitioner.
4. The learned Attorney-General in reply to the above contentions argued that the contentions raised by the learned counsel for the petitioner are mere repetition of the arguments which were duly considered in the impugned judgment and were repelled after careful consideration. The learned Attorney-General submitted that review is not a re-hearing of the case and therefore, a conscious decision of the Court on a point of law or fact cannot be reviewed on the ground that another view was possible or that the decision was erroneous.
5. The contention of learned Attorney-General is not without force. The scope of review proceeding in a civil matter under Article 188 of the Constitution and Order XXVI, Rule 6 of the Supreme Court Rules, 1980, was examined at length by this Court in the case of Rafiq Saigal v. Bank of Credit and Commerce (PLD 1997 SC 865) and after a careful review of the case-law on the point, it was observed as follows:-- "From the preceding discussion it follows that review proceedings cannot partake re-hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court-look an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal, cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberations and have a material bearing on the final result of the case."
6. The main thrust of the arguments of Mr. Abdul Hafeez Prizada in the above review petitions firstly, is, that there in fact existed no such Constitutional convention which required the appointment of the senior most Judge of this Court, in the absence of any concrete ground disqualifying him to such appointment, as the Chief Justice of Pakistan. Secondly, if such a convention in fact did exist, it had no place in a written Constitution and in any case the convention has only moral force and, therefore, it cannot be enforced through a Court of law. It is further contended by the learned counsel that the appointment of petitioner having been made before the date of the impugned decision, the same could not be nullified on the basis of the said convention which received judicial recognition for the first time under the impugned decision and, therefore, operated prospectively.
To support his above contentions, the learned counsel extensively read passages from the books, Constitutional and Administi ative Law (Seventh Edition), by Stanley de Smith and Rodney Brazier; Constitution and Administrative Law by Hilaire Barnett; The Tempting of America The Political Seduction of the Law by Robert H. Bork and American Jurisprudence (Second Edition), Vol.16. These contentions of Mr. Pirzada were examined in detail in the impugned judgment and were rejected. It is, therefore, quite clear that the decisions on these issues were arrived at by us after full application of mind, deliberately and consciously. Such a decision is not open to review on the ground that the view taken by the Court was erroneous or that another view was possible. It is not disputed by Mr. Pirzada that the opinions of various foreign jurists relied by him in support of his above contention, have no binding effect. These opinions are just one view of the matter expressed by these authors and did not exclude the possibility of another view on the controversies. The learned Attorney-General very aptly invited our attention to the following observations of the Indian Supreme Court on the status of Constitutional convention in India, a State governed by a written Constitution, in the case of Supreme Court Advocates-on-Record Association v. Union of India (AIR 1994 SC 268):-- "We are of the view that there is no distinction between the 'Constitutional law' and an established 'Constitutional convention' and both are binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the 'Constitutional law' of the land and can be enforced in the like manner."
7. Mr. Abdul - Hafeez Prizada, the learned counsel for the petitioner, contended that this Court did not express any opinion in the impugned judgment on the powers of President under the Constitution to appoint the Chief Justice of Pakistan from outside the Judges of this Court although this contention was raised by him during the course of hearing of the Constitutional petitions specifically. The learned counsel contended that in order to settle the controversy regarding appointment of the Chief Justice of Pakistan, once and for all and to leave no room for any future adventurism in this behalf, this Court should not leave this issue unsettled.
8. The issue regarding direct appointment of Chief Justice of Pakistan by the President, from outside the Judges of this Court, did not arise directly or indirectly in the Constitutional petitions decided by this Court. The Superior Courts and especially the Apex Court has consistently taken the view that it should not express opinion on matters which do not arise directly out of the lis before it or are abstract and academic proposition of law. (See Mirza Khan v. Crown 1969 SCM R 936; Asma Jilani v. Government of the Punjab PLD 1972 SC 139 and A.K. Roy v. Union of India AIR 1982 SC 710).
Since the question regarding the power of the President under the Constitution to appoint the Chief Justice of this Court directly was not in issue directly or indirectly in the Constitutional petitions decided by this Court, we refrained from expressing our opinion on this abstract proposition of law keeping in view the consistent view of this Court in this behalf. We, therefore, find no justification to go into this controversy in these proceedings.
9. The contention of Mr. Abdul Hafeez Prizada that this Court in exercise of its power under Article 184(3) read with Article 187 of the Constitution, could not restrain the petitioner from performing his judicial functions and as such the error is apparent on the face of judgment, does not appear to be correct. The circumstances and background under which this Court was constrained to pass the interim order restraining the petitioner from performing his functions as the Chief Justice of Pakistan, are set out in detail in the impugned judgment. Similarly, the legal paramaters and the exceptional circumstances justifying passing of such an order by this Court under Article 184(3) of the Constitution, were examined in depth in the impugned judgment and after a careful consideration the contention of Mr. Abdul Hafeez Prizada was repelled. We may also add that the interim order, dated 26-11-1997 restraining the petitioner from performing function as the Chief Justice of Pakistan, passed by a Bench of this Court functioning at Quetta, was confirmed by the Full Court on 2-12-1997. The revised roster of sitting of the Judges issued by the Senior Judge in pursuance of the order of Full Court, dated 2-12-1997 shows that the petitioner was heading Bench No.II consisting of himself and two other Judges of this Court. Therefore, factually it is not correct to say that the petitioner was restrained from performing his judicial functions as a judge of this Court. We, therefore, find no justification for agitating this contention again in the present review petitions.
' Similarly, the contention of Mr. Pirzada that the principles governing the de facto exercise of power by a holder of the office was not applicable to a Constitutional appointment, was rejected by this Court after detailed examination, and therefore, the same cannot be allowed to be re-agitated in the review proceedings.
10. Mr. Abdul Hafeez Prizada, the learned counsel for the petitioner, also contended that this Court, in the impugned judgment, by directing the Federal Government to notify the appointment of Mr. Justice Ajmal Mian, the senior most Judge of this Court, as the Chief Justice of Pakistan, not only acted beyond the scope of its power under Article 184(3) of the Constitution but it also violated the spirit of the judgment in the famous Judges' case and the impugned judgment besides usupring the power of President under Article 177 of the Constitution. Mr. Abdul Hafeez Prizada vehemently argued that after holding the appointment of petitioner as the Chief Justice of Pakistan unconstitutional, the Court should have left the appointment of the Chief Justice of Pakistan to the President in accordance with the provisions of Article 177 of the Constitution and the law declared in Judges' case and in the impugned judgment. The argument of Mr. Pirzada cannot be considered in isolation from the stand taken before the Court by the learned counsel representing the Federation in the cases. In the famous Judges case, this Court ruled that the senior most Judge of a High Court is entitled to be appointed as the Chief Justice of that Court in the absence of any concrete material or ground disqualifying him for such appointment, on the basis of an established Constitutional convention. In the impugned judgment, this Court held that the appointment of the senior most Judge of this Court as the Chief Justice of Pakistan in the absence of a concrete ground disqualifying him to such appointment, is not only supported by a well-established Constitutional convention acted upon and accepted by the functionaries exercising power to appoint the Chief Justice of Pakistan, but also on a fair interpretation of provisions of Articles of the Constitution relating to the appointment of Chief Justice of Pakistan and the principle of independence of judiciary enshrined in the Constitution, this conclusion is inescapable. The power to appoint the Chief Justice of Pakistan under Article 177 of the Constitution, is, however, to be exercised by the President on the advice of the Prime Minister in the light of the opinion rendered by this Court in Presidential Reference No.2 of 1996 reported as Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84). It is will pertinent to reproduce here the relevant paragraph of the opinion rendered by this Court in that case. Mr. Justice Ajmal Mian (as he then was), a member of the Bench which rendered opinion in the above Presidential Reference No.2 of 1996, in his opinion, concluded as follows:-- "37. The upshot of the above discussion is that my answer to the above question framed in the above President's reference is that for appointments of Judges of the Superior Courts under Articles 177 and 193 of the Constitution, Article 48(1) relating to Prime Minister's advice is attracted and the President shall act in accordance with the same provided it is in accordance with judgment in the case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324."
' Similarly, one of us (Justice Saiduzzaman Siddiqui), who was also member of the Bench which rendered the opinion in Reference No.2 of 1996, also observed as follows:-- "The preceding discussion leaves no room for any doubt that The advice of Prime Minister is necessary in the appointment of Judges of Superior Courts under Articles 177 and 193 of the Constitution by the President."
11. It was in this background, when the learned counsel representing the Federation made a categorical statement before the Court during the course of the hearing of Constitutional petitions, that the Federal Government has nothing against Mr. Justice Ajmal Mian, who was then the senior most Judge of this Court, which disentitled him to the appointment to the office of Chief Justice of Pakistan, the Full Court directed the Federal Government to take immediate steps to notify the appointment of Mr. Justice Ajmal Mian, as the Chief Justice of Pakistan. The above direction of this Court to the Federal Government to take steps to notify the appointment of Mr. Justice Ajmal Mian as the Chief Justice of Pakistan, necessarily, implied the steps which were required to be taken by the functionaries responsible for the appointment of Chief Justice of Pakistan in accordance with the provisions of the Constitution and the law laid down by this Court in the impugned judgment.
This direction of the Court, therefore, did not have the effect of either usurping or interfering with the power of the President or the other functionaries under the Constitution relating to the appointment of Chief Justice of Pakistan.
12. The above discussion though disposes of the contention of Mr. Abdul Hafeez Prizada, but in order to satisfy ourselves, whether any Constitutional irregularity was committed in the appointment of Mr. Justice Ajmal Mian as the Chief Justice of Pakistan on account of the above direction given by this Court, we called for the original summary initiated by the Law and Justice Division for appointment to the office of Chief Justice of Pakistan in pursuance of the impugned judgment.
After going through the summary, we found that no irregularity was committed. The summary prepared by the Law and Justice Division for the Prime Minister in connection with the appointment of Chief Justice of Pakistan in pursuance of the impugned judgment of this Court, clearly stated that Mr. Justice Ajmal Mian is the senior most Judge of this Court and is qualified to be appointed as the Chief Justice of Pakistan, as there is nothing against him which disqualified him to hold this office. On this summary, the Prime Minister advised the President to appoint Mr. Justice Ajmal Mian as the Chief Justice of Pakistan and as a consequence of this advice of Prime Minister, the President approved the appointment of Mr. Justice Ajmal Mian as the Chief Justice of Pakistan which was, accordingly, notified. It is, therefore, quite clear that the appointment of Mr. Justice Ajmal Mian as the Chief Justice of Pakistan was notified strictly in accordance with the provisions of the Constitution and the law laid down by this Court in this behalf. Before parting with these cases, we may refer to the contention of Mr. Ahmad Raza Khan Kasuri, the learned Advocate Supreme Court for the petitioner in C.R.P. No.3 of 1998, that this Court instead of holding the appointment of petitioner as unconstitutional should declare that the petitioner stands retired from his office with effect from 26-11-1997, The learned counsel stated that he has full authority from the petitioner to make this statement. The controversy regarding Constitutionality of the appointment of petitioner as the Chief Justice of Pakistan was decided by this Court through the impugned judgment after affording full opportunity to the petitioner. The petitioner during the course of hearing of the Constitutional petitions never expressed the desire to retire from the office of Chief Justice of Pakistan. His stand throughout the proceeding was, that his appointment as Chief Justice of Pakistan was Constitutionally valid. Even in the present review petitions his stand remained unchanged in so far the memos. Of the review petitions are concerned. We, therefore, cannot allow the learned counsel to take an absolutely new stand during the arguments in the review proceedings which was available to him during the course of hearing of the Constitutional petitions but was never urged.
13. No ground for review of judgment, dated 23-12-1997 is made out. The review petitions are, accordingly, dismissed. These are reasons for the oral order announced on 14-10-1998 dismissing the above review petitions.