1. DORAB PATEL, J.-This Constitutional Petition has been filed by 'the Vice-President of the Karachi Bar Association to challenge the appoint--ment of Mr.. Justice Abdul Kadir Shaikh as Chief Justice of this Court by a Notification dated 22-1-1975 Mr. Justice Abdul Kadir Shaikh was appointed as Chief Justice by the President in the exercise of his powers under clause (1) of Article 193 o(' the Constitution. ' However, according to Mr. Mumtaz Hassan, the learned counsel for the petitioner, when the office of Chief Justice became vacant on the death of late Mr. Justice Tufail Ali Abdur Rehman, the vacancy which-had thus arisen could be filled only under Article 196 of the Constitution, therefore the learned counsel's submission was that the Senior Puisne Judge of this Court had to be appointed the Chief Justice in view of the Article.
2. The petition raises the obvious question whether it .Is maintainable. Mr. Mumtaz Hassan relied on the decision in R. v. Speyer ((1916) 1 K B 595 because the English Courts held in that case that a writ of quo warranto could lie against an appointment to the Privy Council. This case might have had some relevance in the appointments challenged had been appointments to the Judicial Committee of the Privy Council, but as they were not we do not see how the case is relevant to the contention that a writ can. Be filed in a High Court to challenge the, appointment of the Chief Justice of the Court. The more so in view of the express constitutional enactment that a High Court shall consist of a Chief Justice and such other Judges as may be appointed by the President.
3. However, for the purposes of examining Mr. Mumtaz Hassan's submissions on the construction of Article 196, we will assume that the petition is maintainable. . But as the impugned appointment has been made under Article 193 of the Constitution, it is necessary to examine both Article 193 and Article 196.
4. Article.193 in so far it is relevant reads: "193: y-(1) A Judge of a High Court shall be appointed by the President after consultation-(a) with the Chief Justice of Pakistan; (b) with the Governor concerned ; and (c).Except where the appointment is that of Chief Justice, with the Chief Justice of the High Court. (2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than forty years of age, and-(a) he has for a period of or for periods aggregating not less than ten years been an Advocate of a High Court including a High Court which existed in Pakistan at any time before the commencing day ; or (b) he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; Article 196 reads as follows "196. At any time when (a) the office of the Chief Justice of a High Court is vacant, or (b) the Chief Justice of a High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the High Court to act as Chief Justice."
5. The words in Article 196 that "the President shall appoint the most senior of other Judges of the High Court to act as Chief Justice" may be contrasted with Article 193 according to. Which a Judge "shall be appoint by the President. Similarly, Article 177, which dealt with the appointment of the Judges of the Supreme Court, states; for example, that the Chief Justice of Pakistan" "shall be appointed by the President". In this background it seems to us that the marginal note to Article 196 is correct, because in the context discussed, the words 'to act as Chief Justice" mean that the person appointed under this Article is appointed only as Acting Chie Justice of the Court in which the vacancy has occurred. However, according to Mr. Mumtaz Hassan, the appointment contemplated under the Article was a permanent appointment because the. Word "act", according to learn counsel, meant "to perform". But, there is nothing in the ordinary mean in of the word `act' to exclude the idea of temporary appointments, the more so as the word is followed by the word `as'.
6. Secondly, the Article refers to two contingencies ; the first under clause (a) when the office of the Chief Justice is vacant and the second when the Chief Justice is absent or, is unable to perform his duties. Now, if the appointment contemplated under the Article is a permanent appointment then a Chief Justice on leave would cease to become Chief Justice on the commencement of his leave.
7. Mr. Mumtaz Hassan realized that the implications of his submission lead to absolute absurdity, so his further submission was that the contingency under clause (a) of Article 196 was a permanent vacancy whilst that under clauses (b) was a temporary vacancy, therefore, when a Chief Justice was appointed , "to, act as Chief Justice" under clause . (b) he would be only an Acting Chief Justice, but if he was appointed under clause (a) he would be the permanent Chief Justice. The argument assumes that the - word `vacant' in clause (a) only means a permanent vacancy but the ordinary meaning of the word does not contain any such restriction, and -as we will presently show, the history of the Article is fatal to the submission advanced. In any case, we do no see how the words "to act as Chief Justice" can be given different meanings for appointments under the same Article.
8. Additionally, Article 180 contains the provision for an Acting Chief Justice of Pakistan and Mr. Mumtaz Hassan admitted that an appoint--ment under this Article would be a temporary appointment. As this Article is identical to Article 196, we are unable to understand the construction he sought to place on Article 196. When we observed that his. Submissions were inconsistent, his reply was that there was no inconsistency because of the difference between Articles 177 and 193, the provisions for the appointments of the Supreme Court and of the High Courts respectively. We have quoted Article 193 earlier, so it is sufficient to state that with regard to the appointment of the Chief Justice of Pakistan, Article 177 reads: "The Chief Justice of Pakistan shall be appointed by the President." Because these words are not in the language of clause (1) (c) of Article 193, Mr. Mumtaz Hassan went to the length of submitting that Article 193 did not contain any provisions for the appointment of Chief Justices of the High Courts, and that it contained only the provisions for the appointment of Puisne Judges of the High Courts. We regret our inability to accept this submission which is contrary to the plain language of clause (1) (c), of the Article. Mr. Mumtaz Hassan, however, feebly submitted that the makers of the Constitution had made their intention clear in Article 177 but not in Article 193. We do not think so, and we think that the language of Article 193 (1.) (c) very clearly contemplates the appointment of a Chief Justice, by the President after consultation with the Chief Justice of Pakistan and the Governor concerned. That the provision is. Couched in language different from that of Article 177 is not material, the snore so as the language of the Article is not dissimilar from that in the earlier constitutional enact--ments to which we will presently refer. In these circumstances, if we were to accept Mr. Mumtaz Hassan's submissions; it would mean nullifying the provisions of Article 193 (1) and when we observed that this would be contrary to the settled principle.- for the construction of statutes, learned counsel's only reply was that the meaning of Article 196 was plain. Learned counsel was conscious that it was not reasonable to invite us to give different meanings to the same words in an Article of the Constitution so as to nullify another provision of the Constitution, and therefore he tried to support his submission by reference to the books.
9. Learned counsel relied on passages in Maxwell on Interpretation of Statutes and in Craies on Statute Law and it would be sufficient to quote here the passage of Craies (Vth Edition page 159 on which he relied).
10. "And, in fact, a word may be used in two different senses in the same section of an Act. It is obvious, said Noth J.; in Re Smith Grean v. Smith, that the word `property' is used in section 54 of the repealed Bankruptcy Act, 1869, in two totally different senses. The Court said, in Dood. Angell v.
11. Angell : Considerable difficulty arises in the construction of the Real Property Limitation Act, 1833, by reason of. The word `rent' being used in two different senses throughout, viz. In the sense of a rent charged upon land, and of a rent reserved under a lease. Similarly, in R. v. Allen, the Court held, as to the word marry' in section 57 of the Offences against the Person Act, 1861, which enact that whosoever, being married, shall marry any other person during the .Life of the former husband or wife...Shall be guilty of felony, that 'it is at once self-evident that the proposition that the same effect must be given to the term `matter' in both parts of the sentence cannot possibly hold good."
12. Thus, according to the learned author, the same words even in a section can be given a different meaning, but only when there is some compelling reason for so doing. Therefore, the question is whether the language of Article 196 requires us to give different meanings to the word "to act as Chief Justice" in the Articles on the footing that there is an ambiguity, the marginal note is not irrelevant, because marginal notes can be used as a guide to the construction of an ambiguity.
13. The note states "Acting Chief Justice". But in fairness to learned counsel we must point out' he laid stress on the word `vacant' in clause (a) of the Article and submitted that it excluded a temporary vacancy. But we are not able to accept this submission. Further in our humble opinion a Constitution must be construed liberally, and effect must be given to every word and Article in it, and reading Article 193 with Article 196 we have no doubt. That Article 196 only refers to an appointment to a temporary vacancy. However, if we are wrong, at the highest, there is an ambiguity in the Article, and as the framers of the Constitution have given definitions of the words used in the Constitution in Chapter V, the definition thus given must be followed in the absence of any intention to the contrary in any specific Article.
14. We quoted Article 196 earlier, and there is absolutely nothing in it to indicate that the definitions of Chapter V are to be excluded. Therefore, it would be convenient to quote here Article 261 which reads : '
15. "261. For the purposes of the Constitution, a person who acts in an office shall not be regarded as the successor to the person who held that office before him or as the predecessor to the person who holds that office after him."
16. As a person who acts in an office is not to be regarded as the successor of his predecessor, nor as the predecessor to the person who will succeed him) it- is clear beyond doubt that a person who acts as Chief Justice*under Article 196 is only an Acting Chief Justice. The definition 'contained in this Article is fatal to the submission advanced before us, and when we referred Mr. Mumtaz Hassan to it, his only reply was that his submissions were -supported by the scheme of the Constitution. And in deference to ingenuity of this argument we would now examine it.
17. Mr. Mumtaz Hassan's submission was that although the Judges were appointed by the President, the President was bound by the advice of the Prime Minister, and therefore to prevent the Executive from controlling the Judiciary, the third clause of Article 175 prescribes "The Judiciary shall be separated progressively from the Executive within three years from the commencing day."
18. According to the learned counsel, the President had been deprived of the power enjoyed by the Head of the State in previous Constitutions of appointing the Judges because of the mandatory requirement of clause (3) of Article 175 ; but the direction in this clause has reference to the separation. Of the subordinate Judiciary. Therefore, learned counsel dropped this plea and submitted that he was supported by the history of Article 196 ; accordingly he took us through the relevant constitutional provisions to which we will now briefly refer.
19. We would begin with the East India High Courts of Judicature Act, 1861 by which the three Presidency High Courts were set up. According to section 2 of this Act, the Chief Justice and Judges.
20. Of these Courts were to be appoint--ed by Her Majesty; and the only stipulation .With regard to the appointment of the Chief Justice was that not less than one third of the Judges of the Court including the Chief Justice shall be Barristers. Section 7 was the provision for "vacancy of the office of Chief Justice or other Judge", and in so far as it is relevant, it reads :- "Upon the happening of a vacancy in the office of Chief Justice, , during any absence of a Chief Justice, the Governor General in Council or Governor in Council, as the case may be, shall appoint one of the Judges of the same High Court to perform the duties of Chief Justice of the said Court until some person has been appointed by Her Majesty to the office of Chief Justice of the same Court, and has entered on the discharge of the duties of such Office, or until the Chief Justice has returned from such absence."
21. Thus, like Article 196, the section contemplated two- types of emergencies a vacancy in the office of the Chief Justice and his absence, and is thus similar to the Article under consideration before us. However, we agree that this section contains clear provision to indicate that the person appointed under it would only be an Acting Chief Justice.
22. Then came the Government of India Act, 1915, and the provision for the constitution of the High Courts was contained in section 101. Once again this section perscribed only that the Chief Justice and the Judges would be appointed "as his Majesty may think fit to appoint". The provision for filling vacancies in the Courts was contained in section 105, subsection (1) of which is relevant to learned Counsel's arguments and reads "105.-(1) On the occurrence of a vacancy in the office of Chief Justice of a High Court, and during any absence of such a Chief Justice, the Governor-General-in-Council in the case of the High Court at Calcutta, and the local Government in other cases, shall appoint one of the other Judges of the same High Court to perform the duties of Chief Justice of the Court, until some per ;on has been appointed by His Majesty to the office of Chief Justice of the Court, and has entered on the discharge of the duties of that office, or until the Chief Justice has returned from his absecce, as the case requires."
23. It is clear from this provision that the vacancy contemplated under this section, as in section 7 of the 1861 Act, was a temporary vacancy only. This constitutional position continued until the Government of India Act, 1935.
24. Section 220 of the Government of India Act, 1935 prescribed that every High Court "shall be a Court of Record and shall consist of Chief Justice and such other Judges as His Majesty may from time to time deem it necessary to appoint'". This section also prescribed the qualifications for the appointment of Judges, including Chief J~istices, and it is sufficient to state .Here that the requirement of a Chief Justic:~ was that he should be a Barrister or a Pleader or a person who had served "fcr not less than 3 years as a Judge of a High Court". Mr. Mumtaz Hassan also drew our attention to. Section 222 which contained the provision for filling vacancies and subsection (1), which is relevant to learned counsel's submissions, read as follows : "222.-(1) If the Office of Chief Justice of a High Court becomes vacant, or if any such Chief Justice is by' reason of absence, or for any other reason, unable to perform the duties of his office, these duties shall, until some person appointed by His Majesty to the vacant office has entered on the duties thereof or until the Chief Justice has resumed his duties, as the case may be, be performed by such one of the other Judges of--the Court as the Governor-General may in' his discretion think fit to appoint. For the purpose."
25. Then came the 1956 Constitution and the provision for the temporary appointment of Chief Justice and Judges of High Courts was contained in Article 168 and the first clause of this Article was in pari materia with sec--tion 222 (1) of the Government of India Act, 1935 which we have just discussed.
26. Learned. Counsel seemed to attach no importance to Article 168 (1) but we think it is of crucial importance. As we have shown, for almost a 100 years, it was available only for appointing an Acting Chief Justice, and even when we became independent, this position" continued. That this is the background to Article 196 of the present Constitution is, in our humble opinion, very relevani to the construction of Article 196.
27. In our opinion, Article 166 of this Constitution is also relevant as it relates to the appointment of High Court Judges. The first clause of this Article reads :- "166.-(1) Every Judge of a High Court sha'1 be appointed by the President, after consultation with the Chief Justice of Pakistan, the Governor of the Province to which the appointment relates, and if the appointment is not that of the Chief Justice, the Chief Justice of the High Court of that Province."
28. Thus it will be seen that the appointing authority continued to be the Head of the State, but the further change was that the appointments were subject to the consultations prescribed in the Articles. It is also clear that this was the provision under which the Chief Justices of the High Courts were to be appointed and were appointed. We need not go further into this question as it was conceded by Mr. Mumtaz Hassan. Now, this Article may be compared with Article 92 of the 1962 Constitution, which contained the provisions for the appointments of the Judges under the 1962 Constitution. This Article 92(1) is identical to Article 193 (1) of the present Constitution, but even Mr. Mumtaz Hassan was compelled to admit that the President also was competent under the 1962 Constitution to appoint and had appointed the Chief Justices of the High Courts under Article 92.
29. We observed that this was fatal to his submission, because Article 92 (1) and Article 193 (1) of the present Constitution were in pari materia. Learned counsel, however, submitted that the two provisions were distinguishable because the manner of filling vacancies in the Court yeas different 'in the 1962 Constitution from that in the present Constitution. As we are only concerned with the office of the Chief Justice, it is sufficient to quote here Article 95. It reads as follows "95. At any time when-(a) the office of Chief Justice of a High Court is vacant; or (b) the Chief Justice of a High Court is absent or is unable to perform the functions of his office due to illness or some other cause such other Judge of the High Court as the President may appoint shall act as Chief Justice."
30. Except for the words which we have underlined* the two provisions namely Articles 95 and 196 are identical, but according to learned counsel his entire submission hinges on this difference between these two provisions. That difference is obvious. Under Article 95 the President could appoint any Judge of the High Court as the Chief Justice, but under Article 196, the President's discretion has been taken away because he has to appoint the senior most Judge of the Court in which the office of Justice has become vacant. Now, from this difference, learned counsel wanted us to hold that the 'intention of the framers of the Constitution was to take away completely the power of the President to interfere with the Judiciary by selecting -the Judge who was to be the Chief Justice.
31. But if that had been the intention of the framers of the Constitution, they would have said so. As they have curtailed the President's discretion only with regard to the vacancy referred to in Article 196 we cannot, by putting an extremely unnatural interpretation on Article 193, defeat the clear provisions of Article 193 (1) (c). Learned counsel's submission, however, assumes, as we pointed out, that the vacancy referred to in Article 196 was a permanent vacancy, but this submission is contrary to the history of the Article, and in view of the successive enactments beginning with the Presidency High Court Act, 1861, it is clear that the word `vacant' in clause (a) of Article 196 has reference to a temporary vacancy. Accordingly we hold that the permanent appoint--ment of a Chief Justice can only be made in Article 193.
32. We now turn to the challenge to impugned appointment on the ground that the Chief Justice is a Judge of the Supreme Court and the submission is that no Judge can hold two offices simultaneously in two different Courts. Author--ities were cited in support of this submission, but it is not necessary to con--sider them, because the argument assumes that the Chief Justice is still a Judge of the Supreme Court. The argument is incorrect, because the Chief Justice had handed over charge of his office as a Judge of Supreme Court before taking oath as Chief -Justice of this Court. Now, as the Chief Justice has relinquished charge of the office of a -Judge of the Supreme Court, the only point for consideration would be whether be was qualified to be a Judge of this Court under Article 193. On that there was no controversy, for the obvious reason that until his elevation to the Supreme Court last September, the Chief Justice had been for several years as the senior Judge of this Court.
33. Mr. Mumtaz Hassan then submitted that the appointment would be contrary to Article 207 (1), which reads "207.-(1) A Judge of the Supreme Court or of a High Court shall not-(a) hold any other office of profit in the service of Pakistan if his remuneration is thereby increased ; or (b) occupy any , other position carrying the right to remuneration for the rendering of services."
34. The learned counsel feebly submitted that the remuneration of the Chief Justice would be increased within the meaning of clause (a) quoted above as he was entitled to keep his lien in the Supreme Court and was only on deputation from that Court to this Court, according to Notification issued by the President. Taking first the question of lien, it has not been defined in the Constitution, nor was learned counsel able to refer us to any definition of the word. Accordingly we would follow the definition in the Fundamental Rules and this means that the lien retained by the Chief Justice in the Supreme Court relates only to the question of title. Therefore, the submission fails, Additionally, it is also contrary to the 5th Schedule of the Constitution In any event, the learned counsel's reliance on Article 207 (1) is totally misconceived because of the word `other' in the provision.
35. Therefore, as the Chief Justice has relinquished charge of his office as a. Judge of the. Supreme Court before taking his Oath of Office as Chief Justice, the office of Chie Justice held by him does not fall within the mischief of Article, as for the time being, he no longer holds the office of a Judge of the Supreme Court.
36. Next as to the question of deputation, it must be borne in mind that i1 the transfer is between the superior Courts, and this is not a practice unknown to the common law Courts. And two examples struck us: Lord Denning an Mr. Justice Munir. Taking only the latter example, Mr. Mumtaz Hassan's submission was that the appointment of Mr. Justice Munir as Chief of the Lahore High Court, after his elevation to the Federal Court, was illegal and the mere fact that it had not been challenged in the Courts was immaterial. Now, even though the appointment was not challenged the Legislature was not unaware of this precedent, yet there is no provision either in Article 196 or in any of the other relevant Articles against such a transfer from the Supreme Court to the High Court. As a Constitution must be construed liberally in view of the absence of any prohibition on deputation, we are not able to accept the submission advanced. .
37. The learned counsel then, criticised the statement in the impugned Notification that the Chief Justice was entitled to retain his seniority in the Supreme Court, but this is hardly germane to the question of the appoint--ment of Chief Justice, which is the only question before us. And further the objection concerns their Lordships' Court rather than this Court. We are also not able to understand how an Advocate would have the locus standi to raise an objection concerning the question of seniority of Judge in the Supreme Court. But as an order in the nature of an order of quo warranto is discretionary, this is fatal to the submissions on this aspect of the case in view of the judgment of the Supreme Court in Kamal Hussain v. Sirajul Islam (PLD 1969 SC 42 Finally, although we have examined the arguments of Mr. Mumtaz Hassa on the assumption that the petition is maintainable, we would make it clear that our order should not be treated to mean that a petition of this nature is maintainable. We observed earlier that learned counsel relied on Speyer's case but we may add that according to learned counsel Speyer's case hasbeen approved by the Supreme Court. We accept the submission, but what was approved by their Lordships was what was decided in Speyer's case, and, as we have shown the question of filing a petition in a superior Court against the Chief Justice of that Court did not arise for consideration in Speyer's case.
38. No other argument was advanced. The petition is without merit and is dismissed in limine as we see no merits in the submissions advanced. However, as we completed dictation of this order, learned counsel asked for a certificate on the ground that the petition raised questions involving the interpretation of the Constitution. That is correct and as we are, sitting as a Court of the first instance, we grant the certificate.