ZAHID KURBAN ALAVI, J.--- We propose to dispose of Constitutional Petitions No. D-412/1998 and No. D1069/1999, through this single judgment.
2. The petitioner namely Mr. M. She.' Muhammad, who is a practising Advocate of this Court, through this Constitutional petition bearing No. D-412/1998 has prayed for the following relief against the respondent that:-
(a) the respondent has no authority to appoint any Judge in violation of the Islamic points deduced in the Judges case and/or to act on Lin-Islamic points in violation of the Qadiani's case with reference to the points decided by the Federal Shariat Court;
(b) the respondent had no authority to appoint Rana Bhagwands, a Hindu, in violation of Islamic concept otherwise it shall be amounting to declare the Qadiani's case to have been decided on self-made presumption;
(c) the respondent had no authority to appoint Ms. Majida Rizvi, I. To deal each and every kind of case including the Hudood and Qisas cases;
(d) the respondent had no authority to issue notification dated 30.9.1996 to regularise the appointment of Rana. Bhagwandas, J., in violation of the Islamic concept or in violation of Verse 141 of Surah Al Nissa of the Holy Qur'an or to regularise the appointment of Majida Rizvi without clarifying that she could not sit over Hudood and Qisas cases;
(e) the petitioner be allowed to add/amend the petition, if necessary, after going through the comments/reply of the respondents;
(f) pending that, as an ad-interim relief, the respondent be directed:-
(i) not to regularise the services of any Judge already appointed In violation of the Islamic points which were highlighted in the Judges cases;
(ii) and/or appoint any Judge/Judges in violation of the said points;
(iii) to restrain Rana Bhagwandas from working as Judge of this Court till disposal of this case and;
(iv) to restrain Ms. Majida Rizvi, J., from sitting over the cases involving Hudood and Qisas matters;
(g) any other relief deemed fit and proper in the circumstances of the case may also be granted.
(h) Close of the petition.
3. Briefly the facts of the case; as alleged by the petitioner , in Const. Petition No. D-412/1998 are that the petitioner is a national of Islamic Republic of Pakistan and a law abiding citizen of this Country with rights to be ruled by the State in accordance with law as interpreted by the Supreme Court of Pakistan. With reference to all such rights, guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 (herein after referred to as the "Constitution" the Hon'ble Supreme Court of Pakistan, disposed of a case against Qadiani Sect. (Zaheeruddin v. State) reported in 1993 SCM R 1718, with the observation that a finding of the Federal Shariat Court, if the same is either not challenged in the Shariat Appellate Bench of the Supreme Court or challenged but maintained, would be binding on the Supreme Court, the Hon'ble Supreme Court had also decided the case titled as Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), which was related to the appointment of Judges in the Supreme Court. In this case, it was held by the Hon'ble Supreme Court that under Article 2-A of the Constitution the principles and provisions set out in the Objectives Resolution reproduced in the annexure to the Constitution have been made substantiative part of the Constitution, which, inter alia, enjoins that "whereas the independence of judiciary shall be fully secured". It was also mentioned that in view of provision of clause (1) of Article 2, all existing law shall be brought in conformity with the Injunction of Islam as laid down in the Holy Qur'an and Sunnah. The Hon'ble Bench further observed that "we will, therefore, have to examine the question of appointment of Judges with reference to Islamic concept". It has further been alleged that the said "Judges case" was discussed by the Federal Shariat Court tin two other different cases. In one of the cases it was held that the Prime Minister, the President and Judges of the Federal Shariat Court were not bound to follow any of the judgment of the Supreme Court if it was found to be un-Islamic. This pronouncement of the Federal Shariat Court is also sufficient to treat Hakim Khan's case (PLD 1992 SC 595) to be un Islamic where the operative effect of Article 2-A in the Constitution was declared to be without any effective character. It is alleged that instead of following this undisputed reality in the light of the Qadiani's case a two members bench comprising of Sajjad All Shah, C.J., (as he then was) and Raja Afrasiab Khan, J. Issued a contempt notice to the petitioner herein, when he was Judge of the Federal Shariat Court and it was further ordered by the said Bench that certain paras of the order of the Federal Shariat Court should not be published in any Newspaper, Magazine, Law Journal, etc. In this way the whole Nation was put in darkness as to what had been suit by the Federal Shariat Court. Soon thereafter the Federal Shariat Court declared the Judges case to be un-Islamic; that the hypocrisy of the Rulers and Members of the Chief Justices Committee with Islam by ignoring the Qadiani's case and embracing the un-Islamic Judge case, with intention to obliterate the Foundation of Islamic Judicial System in Pakistan, claimed to be an Islamic State, has not only invited the wrath of Allah in this State in the shape of curses and crisis appearing in the form of sectarianism, bloodshed, law and order situation, poverty, earthquakes, storms alongwith diseases , draught and defeats in every field of life but, has also provided chance to the enemies to say that this is the picture of Islam in Pakistan.
4. The petitioner further alleges that under the garb of Judges case, Justice (Retd.) Sajjad All Shah (as he then was C.J.) followed the first point to get persons of his own choice appointed in Sindh by ignoring the criteria which was set in the judges case; Rana Bhagwandas, J., was not confirmed by the Government of Mst. Benazir Bhutto, like other Judges, but was got confirmed by the concerned Chief Justice after the Judges case as per Notification dated 30.9.1996. A question arises as to whether Rana Bhagwandas, J., a Hindu, who is not a Muslim by his own belief, can keep the sacred book of the Holy Qur'an in his hand particularly in the light of the judgment in the Qadiani's case who claim to be Muslims but are not treated as Muslims by any other Muslim sect in Pakistan and the Government has failed to treat the appointment of Rana Bhagwands to be un-Islamic, illegal and un-Constitutional because he would have no right to keep the Holy Qur'an in his hands to decide cases in accordance with the Islamic principles. To some extent the appointment of Ms. Majida Rizvi, J., also falls within the ambit of certain important points which are not disputed by different Muslim Jurists. The petitioner has filed this const. Petition to treat this Country to be an Islamic State and not a State to be ruled by Muslims as in Turkey and moreover this petition has been filed not to issue any writ by Bench of a Court to another Bench of the same Court but this petition has been field to get the Judges case implemented in all respects to get an order similar to order passed in the case of Haider lqbal Wahnimal v. Islamic Republic of Pakistan in Const.
Petition No. D2 1 1 0/1 997 by this Hon'ble Court.
5. The petitioner further claimed that the President and the Prime Minister of Pakistan are bound not to follow any unIslamic path and, therefore, they are bound, to implement the Judges cases without being black-mailed by any corner of the State.
6. The brief facts of the Const. Petition No. D- 1069/1999, as narrated in the petition, are as follows:- "That the petitioner namely M/s. Saka Enterprises had filed three Income Tax Appeal against the order of the Income Tax Appellate Tribunal, Karachi, in this Court vide ITAs Nos. 212/1998, 213/1998 and 214/1998, respectively. The said appeals were fixed before a Division Bench headed by Mr. Justice Rana Bhagwandas and Mr. Justice Sabihuddin Ahmad. The said appeals were, heard by the said DB only on one common issue, although the three appeals involved different issues for the assessm ent of three years i.e. 1982-83, 1983-84 and 1984- 85. The appeals were dismissed in limine through a short order mentioning therein that reasons to be recorded later on but no detailed order was passed. The learned Division Bench headed by Mr. Justice Rana Bhagwandas, who being a Hindu by faith, was not qualified to be a Judge of this Hon'ble Court and was not competent to condemn the petitioner in three appeals and so there was no Division Bench as required under Section 136 of the Income Tax Ordinance, 1979 and the incompetent bench burdened the petitioner/assessee with heavy income tax in the three appeals without proper hearing, on law and on facts involved and was guilty of misconduct, therefore, there was complete denial of due process of law as enshrined in Articles 4 and 9 of the Constitution of Pakistan and extreme violation of justice as laid down in Qur'an and Sunnah of the Holy Prophet (peace be upon him). It has further been alleged that 'a person, who has been selected as a Judge of High Court, must be a Muslim by faith because if, he is a non-Muslim then he cannot adopt, recite or chant Shari-e-Islam as held in 1993 SCMR [ 1718 and must have the qualities as laid down by the Hon'ble Supreme Court in PLD 1996 SC 423. It is further urged in the Petition that Mr. Rana Bhagwandas, who being a Hindu by faith, is infidel (Kafir) and his appointment as a Judge of High Court of Sindh is against the provisions of Constitution of Islamic Republic of Pakistan, he being not qualified to be a Judge, all his decisions from the date of appointment as Judge of the High Court of Sindh are void without jurisdiction, hence corum non judice and he is again guilty of misconduct. His appointment and the Notification issued in this regard are both void and invalid.
7. The petitioners have made following prayers in Const. Petition No. D-1069/1999:-
(a) To hold Mr. Rana Bhagwandas not qualified to be a Judge of the High Court of Sindh;
(b) Declare that his appointment by the President of Pakistan and notified in the official Gazette is void and invalid.
(c) Declare that the short order passed by him on 18.11.1998 in three Income Tax Appeals being there no D.B. Is of no legal effect.
8. We have heard the petitioner in person in Const. Petition No. D-412/1998, M/s. Abdul Hafeez Pirzadad, Abid S. Zuberi, Khalid Jawed Khan and Yawar Farooqui, Advocates, on behalf of the respondents and M/s. Aminuddin Ansari, Ghulam Qadir Jatoi, for the petitioners in Const. Petition No. D-1069/1999 and M/s. Abdul Hafeez Pirzada, Syed Tariq A.I, Standing Counsel, for the respondents and have gone through the documents available on record.
9. It may also be pertinent to state that during pendency of the petitions several Misc. Applications were filed:
(I) Mr. Khawaja Mansoor Ahmed, Advocate, has moved CMA 4733/1999 in Const. Petition No. D412/1 998 and CMA 4736/1999 in Const. Petition No. D-1069/1999, both under Order 1, Rule 10 read with Section 151, CPC and had prayed that Sindh Bar Council may be impleaded as one of the respondents in this petition as being necessary and proper party for determination of all the questions involved in the petition. It has been contended yb Mr. Khawaja Mansoor, Advocate, that he is Vice-Chairman of the Sindh Bar Council, which is a statutory body of Lawyers, constituted under the Legal Practitioners and Bar Councils Act, 1973 (Act XXXV of 1973) and more than ten thousand Advocates have so far been enrolled as Advocates of the High Court and Subordinate Courts in the Province of Sindh, without any discrimination of their religion, case, colour, creed or sex which includes Muslims, Hindus, Christians and Parsis, etc. The Sindh Bar Council, under the statute, owes its duty to protect and safeguard the rights, interests and privileges of Advocates and so also to the Courts and people at large to protect their Constitutional and legal rights. He has also stated that the present petitions have .Been filed with mala fide intention and on personal prejudice and to tarnish the image of judiciary and every institution of Pakistan not only in the eyes of People of Pakistan but in the comity of nations. He stressed for dismissal of both the const.
Petitions.
(ii) Mr. Naraindas, C. Motiani, Advocate, has also filed an application under Order 1, Rule 10 read with Section 151, CPC in Const. Petition No. D412/98, stating therein that the petitioner has filed Const.
Petition No. D-412/98 to challenge the appointment of Mr. Justice Rana Bhagwandas, to act as a Judge of the High Court of Sindh, which is going to affect not only Mr. Justice Rana Bhagwandas personally but all the Hindus and other members of minority communities like Christians, Parsis, Sikhs, Budhists, Qadianis and others for years to come. The questions involve the interpretation of Articles 25 and 27 of the Constitution, which, respectively relate to the equality of all the citizens and to the prohibition against discrimination in the matter of appointment. He has, therefore, prayed that the intervenor, namely, Kishan Chand son of Kundomal Parwani, a sitting member of the National Assembly of Pakistan, may be joined as one of the respondents in the interest of justice. In the supporting affidavit he has stated that the challenge of appointment of Mr. Justice Rana Bhagwandas at belated stage is mala fide and suffer from laches. Even the petitioner, it is added, is not an aggrieved person and he has no locus standi. The appointment of Mr. Justice Rana Bhagwandas was in terms of Article 193, clause (2), therefore, no proceedings in nature of quo warranto can lie against the Judge of High Court. There is no embargo in the Constitution that a person from minority community cannot be a Judge of superior Court. In the case of Mr. M. L.
Shahani, a Hindu by faith, the point arose when he was appointed as an Advocate-General of Sindh and his selection was challenged in this Hon'ble High Court and the Hon'ble High Court was pleased to dismiss the writ petition. He also seeks dismissal of the petition as the same had been filed with mala fide intention and to only tarnish the image of the judiciary;
(iii) Through CMA 4735/1999 in Const. Petition No. D-412/1998 and CMA 4739/1999 in Const. Petition No. D-1069/1999, both under Order I, Rule 10, CPC. Syed lqbal Haider, has prayed to implead him as necessary party as the matter is of a great public importance and he wants to assist this Court for dispensation of justice. He has stated that in the Constitution of the Islamic Republic of Pakistan rights of minorities have been fully secured and guaranteed,
(iv) The Secretary, Sindh High Court Bar Association Mr. Gulzar Ahmed son of Noor Muhammad, has filed CMA No. 4804/1999 under Order I, Rule 10 read with Section 151, CPC in Const. Petition No. D- 412/1998 with the prayer that the Secretary, SHCBA, may be impleaded as interested party for effectively determining and adjudicating upon all the questions involved in the afore-mentioned petition. It is stated that the SHCBA is duty bound legally and morally to protect and safeguard the privileges, rights and interest of Advocates, and in connection therewith owes responsibility to the Courts as well as the public at large to protect the Constitutional and legal rights. It is alleged that the filing of the petition is motivated with malice and on personal prejudice and is aimed at to tarnish the image of judiciary.
(v) Mr. Neel Keshav, Advocate of this Court, has filed an application under Order 1, Rule l0, CPC in Const. Petition No. D-1069/1999 to implead him as necessary party as the questions involved in the petition would directly affect the rights of the minority population of this Country generally and particularly the rights of the applicant. He is a Hindu practising Advocate of the High Court and his stance is that any adverse decision would deprive him to be appointed as Judge of this Court and the members of the whole Hindu community who are, otherwise qualified to be appointed as judge of this Hon'ble Court. He states that bare reading of the petition clearly reflects that the petitioner has filed the present petition just to gain some financial benefits and has taken a very serious, sensitive issue without realising the consequences thereof. It is stated that Article 2-A of the Constitution has given equal rights to the minority of this Country which cannot be taken away by making such misconceived grounds as taken by the petitioner. He has alleged that the concept of the terms "equality before law" and "equal protection of law" are not of so recent origin in jurisprudence and form a comparative study of legal history and jurisprudence, it is found that the concept of equality before law and principle of equal protection of law were for the first time given and firmly practised by the Holy Prophet (peace be upon him), therefore, even under Islam, discrimination is not permitted in any circumstances. He has strenuously urged that the petition is not maintainable and is liable to be dismissed.
(vi) Through CMA 4395/1999, under Order I, Rule 10, CPC filed in Const. Petition No. D-4395/1999, Mr. Abdul Rauf Khan, practising Advocate of this Court, prayed that he may be allowed to be impleaded as one of the respondents in the petition. He has stated that he is a retired member of Armed Forces of Pakistan and the above-referred petition has direct bearing on the Court Martial proceedings in the Armed Forces of Pakistan. He has further stated that it is not necessary that only the Muslim will be the Judge of High Court/Supreme Court. He has also stated that the petition which is in conflict to the Article 193(2) of the Constitution, 1973, should be dismissed.
10. It has been argued in both the Const. Petitions that it is known to a person of common sense that a person has to use the Holy Qur'an, the Ahadith of the Holy Prophet (peace be upon him) to interpret any provision of law in accordance with Islam, therefore, question arises as to whether Rana Bhagwandas, J., a Hindu who is not a Muslim by his own belief, can keep the sacred book of the Holy Qur'an in his hand particularly in the light of the judgment in the Qadiani's case. As to appointment of Ms. Majida Rizvi, J., it was also challenged and it was said that her appointment falls within the ambit of certain important (Prohibitions) not disputed by different Muslim Jurists and stressed that a lady cannot be a Judge in Hudood and Qisas cases. It has been finally argued that the "Judges case" 'Ix Implemented in all respects to get an order similar to the order passed in an unreported case of Haider lqbal Wahnimal v. Islamic Republic of Pakistan in Const. Petition No. D-2110/1997, by this Hon'ble Court. It was requested that a direction be given to the respondent to enforce the Judges case by appointed Judges in accordance with the Islamic concept.
11. Besides above, Mr. Abdul Qadir Jatoi, learned counsel for petitioner in Const. Petition No. 1069/1998 also referred to Article 194 of the Constitution of the Islamic Republic of Pakistan, 1973 as well as the oath appearing in Third Schedule. He has stated that first of all a Judge who is supposed to take oath is required to recite Bismillah E-Rehman E-Rahim; secondly Judge of the High Court is also to recite on oath that he will preserve, protect and defend the Constitution of Islamic Republic of Pakistan. The rectification of Bismillah in oath is virtually the factor related to Islamic faith, belief in the Almighty Allah, all the prophets and all the books sent by Almighty Allah and to believe the angles as well as Domsday. A Muslim cannot deny or cannot be an unbeliever of the above factors being a Momin. He has pinpointed the famous "Judges case" of Al-Jehad Trust v.
Federation of Pakistan reported in PLD 1996 SC 324 and alleged that in the said judgment the Hon'ble Supreme Court had observed that the Country is not a secular State but it is an Islamic Republic of Pakistan as per clause (1) of Article 2 of the Constitution, 1973 and that Islam is the State religion. Under Article 2-A of the Constitution, the principles and provisions set out in the Objectives Resolution reproduced in the Annexure-to the Constitution have been made substantive part of the Constitution, which inter alia, enjoins that the independence of judiciary shall be fully secured. Mr. Jatoi has also referred the case of Zaheeruddin v. The State (1993 SCM R 1718) wherein the Full Bench of Hon'ble Supreme Court held as under:- .
"It is thus clear that the Constitution has adopted the injunctions of Islam as contained in Quran and Sunnah of the Holy Prophet as the real and the effective law, in., that view of the matter, the Injunction of Islam as contained in Quran Sunnah of the Holy Prophet are now the law. The Article 2-A made effective and the sovereignty of Almighty Allah and it because of that Article that the legal provision and principles of law, as embodied in the UDlective Resolution, have become effective and open Therefore, every man made law must now contorm to the Injunctions of Islam as contained in Quran and Sunnah of the Holy Prophet (peace be upon him). Therefore, even the fundamental rights as given in the Constitution must not violate norms of Islam."
12. Lastly. Mr. Jatoi has argued that in the light of his submissions and the views taken by Muslim Jurists and as per law laid down by the Honourable Supreme Court of Pakistan and High Courts of Pakistan, the provisions of Articles 2-A and 195 of the Constitution of Islamic Republic of Pakistan, 1973, are attracted in the matter reflecting adversely on the appointment of Mr. Rana Bhagwandas, as a Judge of High Court of Sindh, by the respondent No. 1, which is illegal, without lawful authority, being against the provisions of the Constitution, 1973 and as such this petition is fully 1 maintainable. He has prayed that the appointment of Mr. Rana Bhagwandas, as Judge of High Court of Sindh, Karachi, be declared as void, invalid and of no legal effect as he was not qualified to be a Judge of this Court.
13. To support his above contentions Mr. Jatoi has relied on the cases of Allah Dad v. Mukhtar and others (1992 SCM R 1273), Munir Ahmed v. Additional District Judge, Kasoor (NLR 2001 Civil Page 179), Haji Rana Muhammad Shabbir Ahmed Khan v. Federation of Pakistan and others (PLD 2001 SC 18) and Sardar Sultan Ahmed Khan v. Govt. Of Punjab (NLR 2001 Civil 236).
14. Besides above, Mr. Jatoi has also invited our attention to the religious books i.e. Encyclopaedia-II and Encyclopaedia-IV on Fiqh Hazrat Umar (RA) and Fiqh Hazrat All (RA) respectively, written by Dr. Muhammad Rawas Qilaji, Professor, University of Natural Resources and Petroleum, Zahran University, Saudi Arab, issued by Idara-eMaarif Islami, Mansoora, Lahore, wherein qualities and abilities for a person to become a Qazi have been enumerated. He has also produced certain documents from the books of (1) lama Tirmizi Sharif, Volume No. 1, written by Moulana Badiuzzaman (RA), (2) Badaul .Senal, authored by Allama Abu Bakar Alauddin Alkasani (RA), (3) Fatawas Alamgeer, written by Allama Moulana Syed Amir All (late) (RA). In the said books also the qualifications for a Qazi of a Court have been described.
15. Syed Tariq A.I, Federal Counsel, has filed parawise comments of Mr. Ghulam Muhammad Malik,, Section Officer, Ministry of Law, Justice and Human Rights, Islamabad, and has contended that the appointments of Mr. Justice Rana Bhagwandas and Ms. Justice Majida Rizvi, were made as they, for their appointments, fulfilled all the required criteria provided by Article 193 of the Constitution, which does not debar any non-Muslim to be appointed as Judge of a superior Court. Syed Tariq All referred to Article 25(2) of the Constitution and said that this Article provides that there should not be any discrimination on the basis of sex alone. He contended that the appointment of Mr. Justice Rana Bhagwandas, being non-Muslim, is not the first appointment but in the past too non-Muslim Judges were appointed. Learned Federal Counsel stated that the instant petitions being .Not maintainable are liable to be dismissed with exemplary costs as it is obvious that same had been filed only to waste the precious time of this Hon'ble Court.
16. Mr. Abdul Hafeez Pirzada, learned counsel appearing on behalf of Mr. Justice Rana Bhagwandas, has argued that the oath of office taken by the Judges of the Superior Courts enjoins them to protect, preserve and defend the Constitution of Pakistan. Admittedly, he argued, that Mr. Justice Rana Bhagwandas having been validly and competently appointed as a Judge of this Hon'ble Court by and under the order of the President of Pakistan in exercise of the powers conferred upon him vide Article 193 of the Constitution is supposed to have taken the oath in that spirit: Continuing with his arguments, he added that making of the oath is only for the purposes of enabling a Judge to enter upon his office and has no bearing on the validity of his appointment as a Judge of the High Court. He submitted that the form of the oath prescribed in the Schedule to the Constitution does not require that a person taking the oath should be a Muslim. To support his contention on the question of taking of oath of office by a non-Muslim h e stated that the matter stands concluded by the Supreme Court. He has referred to the case of Syed lqbal Haider v. Government of Pakistan in Civil Petition No. 412-K/1996. He has stated that in the. Constitution there is no restriction whatsoever on the appointment of. a non-Muslim as a Judge of the superior Courts of law. He has referred to Article 41 of the Constitution which relates to the election of the President of Pakistan and said that similar is the position for the election of Prime Minister and the corresponding oaths of office are provided therefor. He submitted that keeping in view his contentions no proceedings in the nature of quo warranto can lie. He has vehemently expressed that the very object for filing the is petition is to undermine and destroy the independent and fair name of superior judiciary and the Institution itself. He has prayed that this petition being mischievous, frivolous, oppressive, vexatious and scandalous, is liable to be dismissed without any further proceedings so that the Constitution of the Islamic, Republic of Pakistan, 1973, be protected, preserved and defended as per the oath of office taken by the learned Judges.
17. We have given due consideration and attention to the above oral submissions and have gone through the various written submissions given by the petitioners. We have also gone through the law as it exists. The Constitution of Islamic Republic of Pakistan,. 1973, in Part-VII, deals with the judiciary. From Article 175 onwards the establishment and jurisdiction of Courts is discussed. Article 175 relates to the Supreme Court of Pakistan, its Constitution, appointment of Judges, oath of Office and various other powers. Articles 192 deals with the High Courts and its Constitution.
18. Article 193 deals with appointment of High Court Judges. It is clearly stated therein that a Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of Pakistan and with the Governor concerned. It is stated clearly that the person, who is appointed as High Court Judge, has to be a citizen of Pakistan and of the age not less than 40 years. He has to have at least 10 years practice as an Advocate of High Court and in case of civil servant he has had to have at least 10 years as a members of civil service and lastly he should have held a judicial office for not less than 10 years. For all practical purposes, once an individual fulfils these qualifications mentioned in the Article there is no bar on his being appointed as a Judge of the High Court. There is no bar specifically mentioned in the Articles which would prevent a non-Muslim from becoming a Judge of the High Court. In fact under Article 203-A qualification as regards a Judge of the Federal Shariat Court is concerned, it is clearly mentioned that a person shall be an Aalim well versed in the knowledge of Shariah. The Constitution also specifically mentions Muslim Judges, therefore, it would be logical to conclude that a non-Muslim cannot be a Judge of the Federal Shariat Court. There is no such bar or a specific mention that there has to be a Muslim Judge in respect of the High Court.
19. We are also of the view that various Fiqhs and observations of most of scholars especially in respect of the qualifications of a Qazi do acknowledge that all services would be open to Muslim and non-Muslims alike. There is definite emphasis on the fact that for a Qazi to sit and adjudicate on a dispute requiring interpretation of Shariah it would be necessary for the Qazi to be not only well versed in the knowledge of Islam but also he should have full with in the religion. Most of the time these very qualifications or disqualifications which learned counsel have relied on would be applicable in those cases where interpretation of Shariah or the laws governing Muslims are required. For such type of cases, there is no denial that Federal Shariat Court has been constituted under the Constitution of Islamic Republic of Pakistan, 1973. The Legislatures in their infinite wisdom have clearly separated the type' of Judges who would be sitting as Judges of the High Court and Supreme Court and those, who would be sitting as Judges of the Shariat Courts. Keeping in mind the opinion of eminent scholars and the tradition and history the Constitution has emphasised the word "Muslim Judge" for the Shariat Court but has retained the word "Judge" for the High Courts and Supreme Court.
20. It would be appropriate to note that wherever the makers of the Constitution have intended to debar a non-Muslim for holding any public office then an explicit and specific provision to that effect has been incorporated in the Constitution, which is apparent from the provisions relating to the election of the President of Pakistan as well as the. Prime Minister. It would, therefore, be clear that where the Legislature wanted or where the framers of the Constitution desired that a particular office should be held by a Muslim citizen of Pakistan they have clearly said so. Where that is not the intention then there !s no mention that other person has to be a Muslim. Similar is the case in respect of the Provinces.
21. The written points submits reflects bias against certain persons which for all practical purposes one need not go into. In fact, one of the Judges, who is a non-Muslim and against whom the main thrust of the arguments have been put forward had heard a matter pertaining to an Income Tax case and it is only after loosing that case that the issue whether the Judge was qualified to sit as a Judge, has been raised. If indeed the counsel was of the firm belief that the learned Judge was not qualified to sit and adjudicate in those cases then the objection should have been raised at the initial stage. It would also be worthwhile to note that Rana Bhagwandas, J. (as lie then was) was appointed as Judge of the High Court in the year 1994. He was confirmed as a Judge of High Court in the year 1996. This petition was filed in the year 1998. One wonders why the petitioners waited so long to challenge the appointment of an individual merely on the ground that he being a non- Muslim was not qualified to be a Judge, which fact they are supposed to have known from the very first day of his appointment.
22. Under Article 199 of the Constitution of, Islamic Republic of Pakistan, 1973, a writ can be filed in the High Court on the application of any aggrieved party. Mis. Saka Enterprises, the petitioner, could only qualify to be an aggrieved party based upon the fact that the income tax appeals filed by them against the decision of the Income Tax Appellate Tribunal were dismissed in limine recourse open to the petitioners would have been to challenge the order before the Hon'ble Supreme Court.
They have not done so but in fact have filed a writ petition seeking this Court's indulgence to hold Rana Bhagwandas, J. (as he then was) as not qualified to be a Judge of High Court and that his appointment by the President of Pakistan notified in the official Gazette is void and invalid. If they wanted then they could have even objected to the Constitution of the Bench before proceeding with the Appeals and not after their appeals were dismissed.
23. The Objective. Resolution passed in the Constituent Assembly after partition and independence of Pakistan was made part and parcel of the Constitution. If the Objective Resolution was to be read in toto and if based upon the Objective Resolution it is to be seen whether a law or an Article is against any objective of Islam then indeed application can be made to get it struck down.
Question again would be whether sitting in the extra-ordinary jurisdiction given to us under Article 199 can we strike down a provision of the Constitution on the ground that the same is violative of the Objective Resolution. By and large, it is observed that High Court has no jurisdiction to test any law or statute or provision of law on .The yard-stick of the Objective Resolution. In this we are fortified by an observation made by a Full Bench of this Court, headed by Alma( Mian, C.)., (as his lordship then was) in the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan (PLD 1989 Kar.. 404), wherein it was held at page 430 that this Court was inclined to hold that it is not open to this Court to hold that any of the Constitutional provision is violative of the Objectives Resolution.
24. In the case of Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan and 87 others (PLD 1990 Kar. 9) it was held by a Full Bench consisting of Ajmal Mian, C.)., (as his lordship then was) at page 70 as follows:- I am, therefore, of the view that in presence of the above unambiguous dictums of the Pakistan Supreme Court, it is not open to this Court to hold that a provision of the Constitution can be struck down on the ground of its being violative of the Objectives Resolution or of national aspirations or of higher ethical notions or of philosophical concepts of law or of the basic structure.
Additionally, jurisdiction of this Court under Article 199 read with Article 175(2) of Constitution and not unfettered jurisdiction as to entitle it to strike down a provision of Constitution on a ground other than highlighted by the Supreme Court in the above discussed cases. Reference may also be made to the case of Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and 2 others, PLD 1966 SC 1 at 25-E and to the aforesaid cases of the Supreme Court, namely, Lt. Col. Farzand A.I, United Sugar Mills and the Fauji Foundation as to the effect of the expression "subject to Constitution."
25. In Const. Petition No. D-412/1998. Petitioner, Mr. Shafi Muhammad, Advocate, has made several prayers. According to him the respondent has no authority to appoint any Judge in violation of the Islamic points deduced in the Judges case and/or in violation of the Qadianis case, especially with the reference to the points decided by the Federal Shariat Court. He has further prayed that the respondent had no authority to appoint Rana Bhagwandas, J., (as he then was), a Hindu by religion, in violation of Islamic concept. He has also prayed that the respondent had no authority to appoint Mrs. Majida Razvi, J., (as she then was) to deal with each and every kind of case including the cases of Hudood and Qisas. Several other prayers have been made which include the fact that the Notification dated 30.9.1996 should be declared null and void as the Secretary, Ministry of Law, Justice and Parliamentary Affairs, had no authority to issue such a Notification. They have further called for an order to restrain Rana Bhagwandas and Mrs. Majida Razvi, JJ., from sitting and disposing of cases. For Rana Bhagwandas, J., is a general restraining order is sought and in respect of Mrs. Majida Razvi, in cases only to the extent Hudood and Qisas.
26. To begin with the Constitution Petitions were originally filed only against the Secretary, Ministry of Law, Justice and Parliamentary Affairs. Thereafter an amendment was made and Rana Bhagwandas, 3., was made respondent No. 2. Since Mrs. Majida Razvi, has already been retired before this matter could be disposed of, therefore, the prayer against her has become infructuous.
As regards Rana Bhagwandas, 3., is concerned he has since been elevated to the Hon'ble Supreme Court, therefore, most of the prayers calling for a restraining order have also become infructuous as we have no authority or power to pass a restraining order against a Judge of the Hon'ble Supreme Court.
27. With the foregoing observations both the Const. Petitions bearing Nos. D-412/1998 and 1069/1999 are disposed of alongwith applications pending therein. .