' The petitioner, an Advocate of Supreme Court of Pakistan has filed this Constitutional petition praying that notification, dated 23rd June, 1999 be declared violative of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as "Constitution") and decision of the Hon'ble Supreme Court of Pakistan, hence liable to be set aside. It is added that the Federal Government be directed to appoint learned Senior Puisne Judge of this Court as Acting Chief Justice. The petition came up for limine hearing on 25-61999 when pre-admission intimation was issued to the Federal Government Mr. Sher Zaman Khan, learned Deputy Attorney-General appeared and represented the respondents.
2. The petitioner argued that there is established convention that in the absence of the Hon'ble Chief Justice of the High Court next senior most Judge is appointed as Acting Chief Justice, It is added that the respondent has made glaring violation of the Constitution as well as decision of the Hon'ble Supreme Court while issuing the impugned notification dated 23-6-1999 whereby a learned junior Judge has been appointed as Acting Chief Justice. It is argued with reference to the judgment of the Hon'ble Supreme Court in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) that the act of the Federal Government is not in the interest of the country and Judiciary as it is likely to shatter the confidence of the public on the higher Courts of the Country. It is added that the Government cannot be allowed to ruin the healthy traditions and act against precedent cases of the higher Courts. The petitioner referred to the Articles 180, 193 and 196 of the Constitution in this behalf and relied on the case of Al-Jehad Trust (supra).
3. On the other hand, learned Deputy Attorney-General argued that the Hon'ble Acting Chief Justice of the Supreme Court of Pakistan is appointed under Article 180 of the Constitution which provides that Acting Chief Justice shall be the senior most. Judge of said Court whereas the learned Acting Chief Justice of a High Court is appointed under Article 196 of the Constitution, which provides that the President shall appoint any one of the Judges of the High Court as Acting Chief Justice or may request one of the Judges of the Supreme Court to act as Acting Chief Justice of the High Court, when the Chief Justice of High Court is absent or is unable to perform functions of his office due to any other cause, The Legislature has made a distinction in the appointment of Hon'ble Acting Chief Justice of Supreme Court and of a High Court. It is maintained that the appointment has been made strictly in line with the provision of the Constitution. It is argued that as seen from Article 180 of the Constitution, the President has no discretion in the appointment of a Acting Chief Justice of the Supreme Court while in the appointment of a Acting Chief Justice of a High Court he has absolute discretion. Learned Deputy Attorney General compared to the provisions of Articles 180 and 196 to argue that the Legislature in its own wisdom has given this discretion to the President.
Learned Dy. A.-G in this behalf has referred to the case of Al-Jehad Trust (Supra) particularly pages 492 to 494. It is argued that the Hon'ble Supreme Court in the aforementioned judgment has dealt with the appointment of the Judges of the High Court as well as Chief Justice under Article 193 but as far the appointment of. Acting Chief Justice under Article 196 is concerned there is no guide-line except it was ruled that it was not desirable that a Judge of the Supreme Court should be made Acting Chief Justice of a High Court. It is added that the appointment of Acting Chief. Justice is the sole discretion of the President and even he is not bound by the advice of the Prime Minister in this behalf. It is added that the action of the President is immune from challenge in view of the Article 48(2) of the Constitution. In this behalf reliance is placed on Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84). It is added that the writ cannot be issued in view of the provisions of Article 199(5) of the Constitution against the High Court. In this behalf he has placed Messrs Arkways (Pvt.) Ltd. v. Federation of Pakistan (PLD 1992 SC 251), Syed Zainuddin Oadri v. The Registrar, Cooperative Societies, Hyderabad (1995 M LD 280), Malik Asad Ali v Federation of Pakistan (PLD 1998 SC 161), Abrar Hussain v. Government of Pakistan (PLD 1976 SC 315) and Messrs Tank Steel and Re- Rolling Mills (Pvt.) Ltd, Dera Ismail Khan v. Federation of Pakistan (PLD 1996 SC 77).
4. It is argued that the prayer is for quashment of the Notification, therefore, cannot be granted, moreso in the absence of the necessary parties. It is added that such type of petitions have become a fashion and filed without proper study and documents.
5. The petitioner while summing up the arguments submitted that when there is misuse of discretion, this Court can interfere. It is added that the petitioner has locus standi to move Constitutional petition. In this behalf reliance is placed on S.P. Gupta v. President of India (AIR 1982 SC 148). It is argued with reference to Article 5 of the Constitution that obedience to the .Constitution and law is inviolable obligation of every citizen.
6. I have given my anxious consideration to the arguments and gone through the record. Before proceeding further it is necessary to mention here that the petitioner has filed this petition in a very careless and casual manner. Neither he bothered to append the impugned notification nor mentioned the correct date of notification. He has simply appended a photo copy of press clipping.
7. Now coming to the merits. The Articles pertaining to the appointment of Judges of Supreme Court and High Court came up for interpretation in the case of Al-Jehad Trust (Supra). The petitioner referred to paras. 28 and 29 of the judgment by Mr. Justice Ajmal Mian in support of his argument that the convention under Islamic Jurisprudence has the force of law but failed to note the following proviso to the above rule:-- "28 they will not be enforced to the extent of inconsistency with the Fundamental Rights."
' Similarly following last lines of para. 29 reads as under:- "29 'many things which cannot be written in the Constitution are done by conventions'. Let me hope that we shall show those capacities and develop those conventions. The Indian Supreme Court, after reviewing the treatises on Constitutional law and the case-law in the case of Supreme Court Advocates-on-Record Association (supra) has held that here is no distinction between the 'Constitutional law' and an established 'Constitutional convention' and both are binding in the field of their operation. I am also of the view that the Courts, while construing a Constitutional provision, can press into service an established Constitutional convention in order to understand the import and the working of the same, if it is not contrary to the express provisions of the Constitution.
The convention sought to be enforced is in direct conflict with the provisions of Article 196 of the Constitution. This type of provisions in the Constitution make it flexible and workable instead of rendering it rigid. This serves as safety valve which is necessary to save the system from blowing up. Even as per the judgment relied upon by the petitioner himself the convention is to be ignored when in direct conflict with a provision of Constitution. This is not at all, the learned author after referring to the legislative history of Articles 193 and 196 concluded as under :-- "Similarly Article 180 of the Constitution relating to the appointment of Acting Chief Justice of Pakistan was amended by President Order No,14 of 1985 in the above term. However, before the lifting of Martial Law, the Article 180 was restored in its original form, whereas Article 196 was not restored in its original form obviously for the reason that under the amended provision even a Judge of the Supreme Court can be requested to act as the Chief Justice of a High Court.
' It may be observed that sending of a Supreme Court Judge to a High Court as an Acting Chief Justice is undesirable in view of the adverse observation in the judgment of this Court in the case of Abrar Hasan v. Government of Pakistan (PLD 1976 SC 315 at 342). Even otherwise this causes heart burning amongst the Judges of the High Court concerned, which is not conducive for maintaining congenial working relation."
8. There is not a word in this judgment as to the appointment of the Acting Chief Justice from amongst other Judges of the High Court. The petitioner argued with reference to Article 5 of the Constitution that it is inviolable right to challenge the action of the Federal Government but ignored that this Court is custodian of the Constitution and bound to act in accordance with the same. The grant of writ would be in violation of the provisions of Article 196 of the Constitution. Learned Deputy Attorney-General has rightly pointed out that the President of Pakistan has absolute discretion in the matter. In this behalf he has referred to Article 48 of the Constitution which reads as under:-- "48. President to act on advice, etc.--(1) In the exercise of his functions, the President shall act in accordance with the advice of Cabinet [or the Prime Minister].
[Provided that President may require the Cabinet, or as the case may be, the Prime Minister to reconsider such advice, either general]: or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.]
(2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so Land the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever.] It is clear from latter part that anything done by the President in his discretion shall not be called in question on any
9. The petitioner claimed that writ is meant to preserve the Independence of Judiciary, enhance its prestige and image but these are all superficial statements made in the course of arguments. The fact is that such type of litigation unnecessarily making the Judges of the superior Courts party to the Government actions instead of enhancing the prestige amounts to maligning the Judges. No person claiming to be interested in the uplift of the Judiciary would venture such type of petitions which instead of doing some good cause harm to the status of the Judges of the superior Courts generally and to some part particularly. It amounts to prompting Executive to comment on a learned Judge. The Court has to protect itself from so-called protectors and claiming champions of their rights. I am quite conscious of the role of the Bar and its right to criticise Government actions and policies but a line should be drawn. The criticism should remain restricted purely to the actions of the Government and the Judges should not be involved even indirectly. This should be golden rule in such type of litigation. The petitioner proceeded to mention names of the learned Judges . In prayer of the writ petition although neither it was desirable nor required to give the names. This would further support my above views.
10. The vice of frivolous litigation came into existence with the judicial system. The main reason was the wishful thinking of a litigant to defeat the right of its adversaries or at least to delay the fruits of the property or right as long as possible. The work load was not much. The result was that in spite of all efforts of the litigant to avoid the fateful day, the causes were decided in a very short span of time. This discouraged the unscrupulous litigant. The framers of the C.P.C., while making the provision of section 35-A, were fully cognizant of this fact but for the last two decades a new class has come into existence whose sole purpose is to have publicity, therefore, the petitions especially on Constitutional side are got published in the newspapers even before the same are filed. The Press is directly responsible for encouraging this type of litigation. It would be rendering a great service to the Nation if a petition is not published until and unless the matter has been heard by the Court.
11. The Courts are already overburdened and this type of litigation is consuming a lot of precious time. The Courts were, therefore, constrained to take a serious note of this type of litigation. As far our country is concerned, this vice was deprecated for the first time, as far reported cases are concerned, in the case of M.D. Tahir v. Federation of Pakistan (1995 M LD 1864). The relevant portion reads as under:-- "10. Before parting with this judgment, we are constrained to observe that in the recent past a trend has developed that people have started filing vexatious and frivolous petitions before this Court, sometime with the sole object of their own aggrandizement, sometimes for getting their names published in the newspapers and many a time to malign/blackmail the Government in power/Authorities and for political considerations, without their being any substance in the petitions, knowing fully well that disposal of such-like petitions is resulting in choking of this Court with heavy, pendency of cases and sheer wastage of valuable public time which otherwise can be devoted to decide the pending fresh causes of genuine litigants, quickly. Regarding similar class of litigants very apt observations have been made in case of Cheetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. And others (AIR 1969 SC 2060), wherein a Constitutional petition, was filed alleging environmental pollution because of smoke and effluents caused by running of Mills and Plants in the area and the owners of these Mills and Plants were found to be complying with statutory provisions, it was found that the allegations were the result of long history of enmity and animosity. It has been held by their Lordships of the Supreme Court of India that the Court must protect the Society from the so-called 'protectors' and, hence, the application being devoid of any merit or principles of public interest and public protection was dismissed holding that the application certainly creates bottlenecks in Courts and is an abuse of the process of Supreme Court. Therefore, in their own and public interest, people should avoid filing of frivolous/vexatious petitions before this Courts, as filing of a vexatious and frivolous petitions may entail liability to pay special costs besides possibility of prosecution, for abuse of the process of the Court."
' This view was followed in the judgment of the Full Bench of this Court in the case of Kanwar Intazar Muhammad Khan v. Federation of Pakistan (1995 M LD 1903), while in the neighbouring country this was taken note in the judgment reported as AIR 1984 SC 802. The same view was confirmed in the case reported as Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. (AIR 1990 SC 2060).
The matter was also considered in the judgment reported as Mushtaq Ali v. Khalid Anwar (1998 CLC 1138) when it was ruled that this is I high time to discourage the tendency to resort the frivolos litigation just to get cheep popularity through publication of news items in the newspapers. But all these words of caution seem to have not served the desired purpose, therefore, such litigation need to be now discouraged by award of exemplary costs. As far section 35-A, C.P.C. Is concerned, latest case is reported as The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v.
Muhammad Bashir (1998 SCMR 2383) while in the judgment reported as Mst. Asma Begun' v. The Commissioner, Karachi Division, Karachi (PLD 1997 Kar. 13 at page 36) it was ruled that as far writ petitions are concerned, the power of the High I Court to award exemplary costES##
12. The upshot of this discussion is that the petition is dismissed with costs of Rs,50,000. It may be clear that if this trend continued in future the costs shall also be exemplary.