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Civil Appeals Nos. 52, 53 and 54 of 1978, decided on 15th January, 1985.

(On appeal from the judgment and order of the High Court of Baluchistan, Quetta, dated 10‑9‑1977 in Constitutional Petitions Nos. 156 and 158 of 1976).

‑‑‑Arts. 185(3) & 196(b)‑‑Civil Procedure Code (V of 1908), O. XX, r. 2 read with 0. XLIX, r. 3(5)‑‑Leave to appeal granted to consider whether Chief Justice of High Court, while acting as Governor of Province, could finalize a judgment of High Court by signing it and pronounce same by getting it announced in Court.

‑‑‑Arts. 196(b) & 199‑‑Civil Procedure Code (V of 1908), O.XX.r.2‑ Judgment signed after vacating office‑‑Validity‑‑High Court Judge holding of two offices/ positions at same time‑‑Offices having incompatibility of interest‑‑Chief Justice of High Court hearing Constitutional petitions‑‑Judgments reserved‑‑Later, while functioning as Acting Governor of Province signed judgments and got same announced through another Judge‑‑Validity of judgments challenged on ground that he could not perform functions of judge in that capacity‑‑Held: after vacating office of Chief Justice, Governor could not discharge function of that office nor get it performed through another Judge of High Court‑‑Such judgment not being judgment in eye of law, set aside and case remanded for re‑hearing.

Zulfikar Ali Bhutto v. The State P L D 1978 S C 40 ref.

Corpus Juris Secundum , Vol. 67, pp. 133, 134 & 149 ref.

Talmiz Burney, Advocate Supreme Court and A.A. Dastgir, Advocate‑on‑Record for Appellants.

Munawar Mirza, Advocate‑General, Baluchistan with S.M. Abbas, Advocate‑on‑Record for Respondents.

Date of hearing: 15th January, 1985.

‑Leave to appeal was granted in three petitions to examine a pure question of law arising in all of them, namely, whether a Chief Justice of High Court while acting as the Governor of the Province can finalize a judgment of the High Court by signing it and pronounce the same by getting it announced in Court.

2. It is not necessary to narrate the facts of the case for they have no bearing on the question of law requiring determination in these appeals. All that has to be noticed is that three constitutional petitions were filed in the High Court of Baluchistan. They were heard by the Chief Justice of the Baluchistan High Court. The hearing concluded on 29‑6‑1977. The judgment was reserved. On 10‑9‑1977 when the learned Chief Justice was functioning as Acting Governor of the Province, he signed the judgment in all the petitions and had them announced through learned judge of the Court on the same date.

3. The contention of the learned counsel for the appellants is that though by his appointment as the Acting Governor of the Province, the learned Chief Justice had not vacated the office of the Chief Justice as held by this Court in Mr. Zulfikar Ali Bhutto v. The State, P L D 1978 S C 40, nevertheless he was during such appointment unable to perform the functions of a Judge or Chief Justice as envisaged under Article 196 clause (b) of the Constitution and the signing of the judgment and getting it announced being the function of the office of a Judge, he could not perform it on that date and in that capacity.

4. The learned Advocate‑General for Baluchistan has referred to a number of decisions mostly dealing with the provisions of Order XX, rule 2 of the C.P.C. where under even those judgments which had been written and signed by Judges who had retired or served their connection from office were upheld if those were announced by their successors in office. On that anology, the office of the Chief Justice did not get served by appointment of the Chief Justice as Acting Governor and the signing of the judgment and getting it announced through another Judge sitting on the Bench was not violative of any provision or principle of law. He has also referred to the facts of the case only to suggest that on merits no useful purpose could be served by sending back the case to the High Court for a hearing and a decision denovo.

5. It is necessary to examine the constitutional provision on the subject. Article 196 of the Constitution provides as follows:‑‑

"196. 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 any other cause, the President shall appoint one of the Judges of the High Court who have not previously held the office of Chief Justice of the High Court, otherwise than under this Article to act as Chief Justice."

6. At that time Presidential Order No. II of 1977 held the field as it was promulgated on 13th of July, 1979 and came into force at once. It provided as follows:‑‑

"No. F. 24(2)/77, Pub.‑‑The following order made by the President on the 13th July 1977, is hereby published for general information: ‑‑

In pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make the following order:

(1) ... ... ... ... ... ... ... ... ... ... ...

(2) ... ... ... ... ... ...

(3) ... ... ... ... ... ... ... ... ...

(4) A Chief Justice of a High Court who ceases to hold office as the Acting Governor of a Province shall resume his office of Chief Justice and the Judge of a High Court appointed to act as Chief Justice in his place shall resume his office of Judge.

(5) Before entering upon office, an Acting Chief Justice shall make before the Acting Governor Oath in the form set out in the Schedule to the High Court Judges (Oath of Office) Order, 1977 (President's Order (Post‑Proclamation No. 1 of 1977).

It is necessary at this stage to refer also to Chief Martial Law Administrator', Order 1 of 1977 (Laws Continuance in Force) Order, 1977, Clause (i) of Article 2 provides as follows‑‑

"(1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this order and any Order made by the President and any Regulation made by the Chief Martial Law Administrator be governed as nearly as may be, in accordance with the Constitution".

Clause (2) of its Article 3 provides as follows‑‑

"(2) The Governor of a Province shall act on, and in accordance with, the advice of the Martial Law Administrator appointed by the Chief Martial Law Administrator for the Province,"

and Article 6 empowers the Governor in the following terms‑‑

"6. The powers of a Governor shall be those which he would have had the Federal Government directed him to assume on its behalf all the functions of the Government of the Province under the provisions of Article 232, of the Constitution."

7. The statutory provisions referred to make it clear that there was envisaged a situation where the Chief Justice of a High Court may be called upon to perform the duties of the Governor of the province. Considered with the provisions of Article 232, of the Constitution his duties while functioning as Governor are alien to the judicial office held by him and the functions exercisable in that capacity. There is also indication in the President's Order No. 2 of 1977 that the Chief Justice who is relieved of the office of the Governor resumes his office as Chief Justice on the strength of Article 4. Article 2 also makes it clear that a vacancy comes into existence when the Chief Justice of a High Court is acting as the Governor of the Province and the President is under a duty to appoint a Judge of the High Court to act during that period as Chief Justice. These provisions leave no manner of doubt that the Chief Justice of a High Court when he has been appointed and takes over the functions of the Governor of the Province vacates the office of the Chief Justice. After vacating the office of the Chief Justice, the Governor could not discharge the functions of that office. The signing of a judgment, the act of imparting to written words the finality and efficacy of a legal instrument, its pronouncement in open Court are all functions dischargeable only by a Judge and by none else. The Chief Justice, while acting as Governor of the Province, having for the time being vacated the judicial office, could not perform that function nor get it performed through another Judge of the High Court.

8. The provision of Order XX, rule 2, C.P.C. or the principle underlying it, is of no avail in view of the express provision made in Order XLIX, rule 3 which excludes the operation of that rule to proceedings in High Court in the exercise of its ordinary or extraordinary original civil jurisdiction.

9. There is also a well‑recognised principle of the incompatibility of the two offices, that is, of the Governor and of the Chief Justice or a Judge of a High Court. The underlying principle with regard to incompatibility of interest and office has been brought out with great clarity in Corpus Juris Secundum Vol. 67 at pp. 133‑134 in the following words‑‑

"At common law the holding of one office does not of itself disqualify the incumbent from holding another office at the same time, provided there is no inconsistency in the functions of the two offices in question. A public officer is, however, prohibited from holding two incompatible offices at the same time, the rule being founded on principles of public policy, and, even though specific constitutional and statutory provisions furnish no bar to the holding of particular offices or positions at the same time, the common law must be considered in determining whether there is any incompatibility herein unless the legislature has, by clear and unequivocal language, manifested its intention to abrogate the common law principle to the extent of permitting one to hold incompatible offices."

10. The effect of combination of two such offices having incompatibility of interest has been examined further in the same volume at page 149 and the observations are to the following effect‑‑

"Where, however, it is the holding of two offices at the same time which is forbidden by the constitution or statutes, a statutory incompatibility is created similar in its effect to that of the common law, and, as in the case of the latter, it is well‑settled that the acceptance of a second office of the kind prohibited operates ipso facto absolutely to vacate the first without the necessity of judicial proceedings prior to the appointment of another to such office, even though the officer might have assailed the constitutionality of statutes abolishing the first office and creating the second, and not withstanding his acceptance of the second office was with reservation of his right to challenge the validity of such statutes, which reversions were acquiesced in by the appointing power, although, where a statute deems that an officer continues as such unless he signs and files a resigna tion, an officer is ineligible to any incompatible office until he rids himself of the first by signing and filing a resignation. The vacancy occurs in the first office when the holder thereof enters on the duties of the second. Where a person occupies more than one office contrary to the constitution, he usurps the powers of all but the last office accepted" .

11. On the strength of statutory provisions referred to and the governing principles of common law having their basis in overriding considerations of public policy we hold that the impugned judgment is not judgment in the eye of law, irrespective of the substance or merits of the controversy dealt with. The appeals are accepted, the impugned judgment is set aside and a rehearing in all the three constitutional petitions is ordered. No order as to costs.

M.I. Appeal accepted.

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