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Suit No. 173 of 1968, decided on 27th May 1974.
Arts. 104, 129 & 207(1)(a)‑Chief Justice acting as Governor‑Not "appointed" to hold "any office of profit in the service of Pakistan " Expression "service of Pakistan"‑Does not include Governor‑Chief Justice can hold any other office in addition to his own duties if his remuneration not thereby increased‑Chief Justice acting as Governor Does not cease to be Chief Justice‑Office of Chief Justice not being vacated no necessity for fresh oath of office.
Under Article 207(1)(a), the Chief Justice can hold any other office is addition, if his remuneration is not thereby increased. Post of Governor has, not been included in "Service of Pakistan", under Article 129. As the Chief Justice continued to hold office as such while acting as Governor also he did not cease to be the Chief Justice. Under Article 104 the Chief Justice was not "appointed" as Governor but the President directed him to also "act" as the Governor. So he was not "appointed" to hold "any office of profit in the service of Pakistan." The Chief Justice did not thus vacate his post as "Chief Justice", at any time and necessity of a fresh oath of office did not therefore arise.
Naimuddin for Plaintiff.
Niamat Moulvi' for Defendant.
Zafar Hussain Mirza, A: G. : Amicus euriae.
Date of hearing : 24th May 1974.
In this application Mr. Niamat Maulvi for the defendant has questioned the exercise of jurisdiction of this Court on the ground that the Court is not properly constituted.
2. Mr. Maulvi has argued that under Article 192 of the Constitution, High Court consists of Chief Justice and other Judges as may be appointed. Under Article 103, the Governor cannot hold any other office of profit in service of Pakistan. So when Mr. Justice Tufailali the Chief Justice became the Governor he could not hold office also as Chief Justice. So the post of Chief Justice remained vacant and when Mr. Justice Tufailali came back he should have taken oath of office afresh. Since he did not do so, the post of Chief Justice continues to remain vacant and the High Court is not therefore properly constituted.
3. Mr. Niamat Maulvi has thus argued in a circle and his argument is on the face of it fallacious. Here the case is not of the Governor acting as Chief Justice but of the Chief Justice acting as Governor. Under Article 207(1)(a), the Chief Justice can hold any other office in addition, if his remuneration is not thereby increased. Post of Governor has not been included in "Service of Pakistan", under Article 129. As the Chief Justice continued to hold office as such while acting as Governor also he did not cease to be the Chief Justice. Under Article 104 the Chief Justice was not "appointed" as& Governor but the President directed him to also "act" as the Governor. So he was not "appointed" to hold "any office of profit in the service of Pakistan." The Chief Justice did not thus vacate his post as "Chief Justice of Sind & Baluchistan High Court", at any time and necessity of a fresh oath of office did not therefore arise.
4. I find that both the applications of Mr. Niamat Moulvi were thus without any substance. Mr. Naimuddin on behalf of the plaintiff has urged that Mr. Maulvi be burdened with special costs for moving these frivolous, applications necessitating adjournments on three occasions and disclosing the other regular board fixed before this Court, for just playing to the gallery. I entirely agree that this was unfortunately what had happened. I would not however utilise the provisions of section 35‑A, C. P. C. in this case, as the learned counsel has in these applications, made a very bold statement that the High Court had ceased to exist and the Chief Justice and all the judges were functus officio", just because he personally held that opinion. Any action. therefore to penalise the learned counsel may appear to be not strictly objective.
With these observations the two applications are dismissed.
S. A. H. Applications dismissed.
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