Muhammad Azam Khan, C.J.--The above titled appeals, with the leave of the Court, have been addressed against the judgment of the High Court dated 30.4.2010, whereby the writ petition filed by Shaukat Aziz and others was accepted. Since both the appeals arise out of single judgment of the High Court, these are being disposed of through the proposed judgment.
2. The brief facts culminating into these appeals are that the appellants were appointed as Judges of the High Court of Azad Jammu and Kashmir vide Notification No, LD-AD/4/2/92/2007 dated 23.1.2007. The vires of the said notification were challenged through writ petition No, 122 of 2007 which was accepted. The operative part of the judgment is reproduced as under:-- "The epitome of the above discussion is that as the consultation, required by the Act, 1974, is missing in the present case, therefore, I am constrained to hold that the impugned Notification dated 23.1.2007 has been issued without any lawful authority and the offices of the private respondents are hereby declared vacant."
3. Mr. S. M. Zafar, counsel for the appellants, argued that the judgment of the High Court has been passed against the law and facts of the case. The High Court badly failed to consider the relevant provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as the Act, 1974) while delivering the impugned judgment. He argued that the appellants were duly appointed after the consultation with the concerned consulted which was forwarded to the Chairman, Azad Jammu and Kashmir Council (hereinafter to be referred as the Council) for advice. Upon the advice of the Council, which was the requirement of the Constitution, the appointments were made. Once an appointment of a Judge of the superior Court has been made after fulfillment of the requirements of the Constitution and other provisions of law, that cannot be challenged on the basis of procedural irregularities. For the removal of the Judges of the superior Courts, a special procedure has been provided in Section 42E of the Act, 1974 and without following the said procedure no appointment can be declared invalid. He further argued that at the time of appointment of the appellants as Judges of the High Court, their suitability was judged on the touchstone of the Constitution. The learned counsel vehemently argued that initially the process of appointment of Judges was started in September, 2005. The Judges could not be appointed by one reason or the other. After the elevation of Mr. Justice Muhammad Reaz Akhtar Chaudhry, the then Chief Justice of the High Court, as Judge of the Supreme Court and later on as Chief Justice of Azad Jammu and Kashmir, the President consulted with the Chief Justice of Azad Jammu and Kashmir for the appointment of the Judges in the High Court who recommended the names of the appellants for their appointment as Judges and also opined that he had already recommended them in the capacity of Chief Justice of the High Court. The learned counsel contended that it was a valid consultation by the President with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court. He argued that there was no permanent Chief Justice of the High Court, rather there was only Acting Chief Justice and Acting Chief Justice cannot be consulted by the President for the appointment of Judges in the High Court. It was dire need that the Judges be appointed on the basis of the consultation made by the President with Mr. Justice Muhammad Reaz Akhtar Chaudhry in the capacity of Chief Justice of High Court and later on as Chief Justice of Azad Jammu and Kashmir. The matter of appointment of Judges could not be kept pending for an indefinite period.
4. The learned counsel argued that the High Court has declared the appointment of the appellants being without consultation on the basis of double personality. It is not a case of double personality.
The doctrine of double personality is not applicable in the present case. He drew the distinction between the expressions 'double personality' and `double capacity'. He referred to page 64 of "Salmond on Jurisprudence" 12th edition, Ellis v. Kerr [1909 E. 559], William Henry Neale v. Sir T. Turton and others [(1827) 4 Bingham 149 130 E.R. 725], Napier v. Williams [1910 N. 1362] which confirms the view delivered in Ellis v. Kerr [1909 E. 559] and Munir Hussain and others v. Muhammad Aslam and others [PLD 2003 Azad J&K 16].
5. The learned counsel argued that the principle of bias is attracted in the case. The appellants were Advocates of the high standing. They were appointed as Judges of the High Court. They worked in the capacity of Judges for a long time. Ore of the appellants was nominated as member of the Supreme Judicial Council where the President made a reference against Mr. Justice Syed Manzoor Hussain Gillani, Acting Chief Justice of Azad Jammu and Kashmir and Mr. Justice Ghulam Mustafa Mughal, Chief Justice of the High Court and the parallel Supreme Judicial Council passed the order restraining Mr. Justice Ghulam Mustafa Mughal, the Chief Justice of the High Court, from functioning as Judge and Chief Justice. Due to this reason, the Chief Justice in the High Court was biased towards one of the appellants and could not hear and decide the case. Due to acceptance of the writ petition, they have been biased by the order. He referred to pages 159 and 162 of "Administrative Law by Sir William". The learned counsel vehemently argued that the procedure for appointment of a Judge in the High Court is laid down in the Act, 1974 and under the relevant provisions, only a Chief Justice can recommend an eligible person for the appointment of a Judge and the Acting Chief Justice cannot make such recommendation. A Judge has to be appointed after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court. For the purpose he referred to the cases titled M.D. Tahir v. Federal Government and 12 others [1989 CLC 1369] and Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others [1999 SCR 235]. The learned counsel also referred to Paragraph 5 of the comments filed by the Council in the writ petition, wherein the Council took a categorical stand that the appointment of the appellants has validly been made on the advice of the Council and it has been acted upon.
6. Raja Muhammad Hand Khan, Advocate, the learned counsel for Shaukat Aziz and others, while controverting the arguments advanced by the learned counsel for the appellants, has submitted that it is not only a case of violation of rules/procedure but a case of sheer violation of the Constitutional provisions which has not been followed in letter and spirit He submitted that the appointments were manoeuvred, as is apparent from the record, which have been rightly declared invalid by the High Court. The judgment of the High Court is perfect and legal which has been passed after dilating upon all the controversial questions involved in the writ petition which have decided in a comprehensive manner. He emphasised that in case of the appointment of a Judge of the. High. Court, consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court is mandatory in nature and if any escape from the said provisions has been made, the appointment would be invalid and against the Constitution. He further contended that the panels sent by the respective Chief Justices in the month of November/December, 2005 was never acted upon and remained pending for a long time as the names of the appellants were not included in the panel recommended by the then Chief Justice Jf Azad Jammu and Kashmir, rather only Mr. Justice Muhammad Reaz Akhtar Chaudhry in the capacity of Chief Justice of High Court recommended their names. He submitted that it is also not denied that in the meantime Mr. Justice Muhammad Reaz Akhtar Chaudhry, Chief Justice, High Court, was elevated as Judge of the Supreme Court and then Chief Justice of Azad Jammu and Kashmir. In this scenario, the proper course was to seek fresh recommendations and consultation with the Chief Justice of the High Court and then the Chief Justice of Azad Jammu and Kashmir which was not done in the instant case. He argued that a person who recommended the names of appellants as Chief Justice of the High Court also recommended their Nines as Chief Justice of Azad Jammu and Kashmir at different times which is against the spirit of the Act, 1974. Therefore, the High Court was justified while declaring the appointments of the appellants as illegal. He further urged that the consultation with both the Chief Justices at the same time is the scheme of the Act, 1974. In the first panel, the then Chief Justice of the High Court recommended the names of the appellants but the then Chief Justice of the Azad Jammu and Kashmir did not recommend their names which was the only valid consultation as has been the consistent practice in Azad Jammu and Kashmir regarding the appointment of Judges in the superior judiciary. He further argued that the consultation must be in black and white and should be made within a reasonable time by both the Chief Justices which has not been done in this case. In this way, the Rules of Business were not followed in true perspective.
7. He has lastly argued that it is not a case of misconduct, therefore, the procedure laid down under Section 42-n of the Act, 1974 for the removal of a Judge through Supreme Judicial Council is not applicable in this case. He has relied on the cases titled Raja Muhammad Irshad Khan v. Azad Jammu and Kashmir Council and 3 others [2007 "Section 48 of the Jammu and Kashmir Constitution Act, 1996 (Bk.) SCR 419], Habibullah v. D.I.G. Police and 3 others [2004 SCR 378], AlJehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v Federation of Pakistan and others [PLD 1997 SC 84], Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others [PLD 2010 SC 61], Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others [PLD 1998 SC 161], Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others [PLD 2005 SC 511], Mirza Shaukat Baig and others v. Shahid Jamil and others [PLD 2005 SC 530], Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another [2008 SCMR 1148], Raja Hamayun Sarfraz Khan and others v. Noor Muhammad [2007 SCMR 307], Chairman Evacuee Trust Property, West Pakistan, Lahore v. Muhammad Din and another [PLD 1971 Lah. 217] and Ghulam Mustafa Mughal v. The Azad Government and others [1993 SCR 131].
8. Sardar Mansoor Pervaiz, Advocate, has adopted the arguments of Mr. S.M. Zafar, whereas Mr. Farooq Hussain Kashmiri, Advocate, while adopting the arguments advanced by Raja Muhammad Hand Khan, has made an additional prayer seeking the direction, that the appellants must pay back the benefits which they received as Judges of the High Court.
9. We have heard the learned counsel for the parties and perused the record. Before proceeding further, we deem it necessary to go through the history of establishment of the Azad Jammu and Kashmir High Court. Through an agreement dated 16th March, 1846, the British Rulers sold the Jammu and Kashmir State to Gulab Singh, Dogra of Jammu, who was its first Ruler. Initially two `Sadar Adalats' (Chief Courts): one at Jammu and the other in Srinagar, were established. In the year 1877 a High Court {{URDU TEXT}} was established under a regulation known as The State Civil Courts Regulation 1877" which was the highest Court of appeal. The High Court consisted of a Judicial Member who was appointed by Mahraja of Kashmir. In the year 1996 Bk. (1939 A.D.), the Jammu and Kashmir Constitution Act, 1996 (Bk.) (1939 A.D.) was promulgated by Mahraja of Jammu and Kashmir. Part IV of the Constitution deals with the High Court of the State. Section 48 of the Constitution provided the Constitution and title of the High Court while Section 49 dealt with the terms and mode of appointment of Judges. It will be useful to reproduce Sections 48 and 49 as under: "Section 48 of the Jammu and Kashmir Constitution Act, 1996 (Bk.)
"48 Constitution and title of the High Court.--(a) The High Court referred to in this Act is the High Court established in the State by Order No, 1 of 1985 and styled as the High Court of judicature, Jammu & Kashmir State.
(b) The High Court shall consist of a Chief Justice and one or more other Judges, as His Highness may from time to time think fit to appoint."
Section 49 of the Jammu and Kashmir Constitution Act, 1996 (Bk.)
"49Tenure of office of Judges.--Every Judge of the High Court including the Chief Justice shall be appointed by His Highness and shall hold office until he attains the age of fifty five years: Provided that if a Chief Justice is taken from a High Court in British India he shall hold office until he attains the age of 65 years: Provided further that--
(a) a Judge may by resignation under his hand addressed to His Highness resign his office.
(b) a Judge may removed from his office by order of His Highness on the ground of misbehavior, or infirmity of mind or body."
10.A perusal of Sections 48 and 49, reproduced above, reveals that the High Court consisted of a Chief Justice and one or more other Judges. A Judge or Chief Justice was appointed by Mahraja and held the office till he attained the age of 55 years. There was an exception that if a Chief Justice is taken from the High Court from British India, he shall hold the office till the age of 65 years.
11.A perusal of regulation of 1877 and Section 49 of the Jammu and Kashmir Constitution Act, 1996 (Bk.) shows that a Judge of the High Court and Chief Justice were appointed by Mahraja at his sweet will. There was no concept of consultation with Council of Ministers, Assembly or the Chief Justice.
12.After division of. India into two independent countries, i,e,, India and Pakistan, the Princely States were given the choice to join either of the countries. Kashmir was one of the largest State amongst 560 princely States of British India. Kashmiri people started the struggle for freedom and the Government of Azad Jammu and Kashmir was established on 24th October, 1947. The judicial system was established under the Azad Kashmir Courts and Laws Code, 1948. Sections 5 of the Azad Kashmir Courts and Laws Code, 1948 provided the Constitution of the High Court. It is relevant to reproduce Section 5 of the Azad Kashmir Courts and Laws Code, 1948 which reads as under:-- "5. Constitution and appointment of the Judges:--The High Court shall consist of a Chief Justice and other Judges to be appointed by any under the orders of the Azad Kashmir Government and to receive pay as may be fixed by the said Government."
13.A perusal of section reveals that like State Civil Courts Regulation, 1877 and Jammu and Kashmir Constitution Act, 1996(Bk.) (1939 A.D.), the powers to appoint the Chief Justice and Judges in the High Court remained with the Government. There was no concept of consultation in the Courts and Laws Code, 1948. In the year 1949, this Act was repealed and a new Azad Jammu and Kashmir Courts and Laws Code, 1949 was enacted. Under Section 5 of the said Code, the High Court was to consist of a Chief Justice and one or two other puisne Judges who were to be appointed by the Government. Again in appointment of the Chief Justice and Judges, the Government had unfettered powers. There was no concept of consultation. Later on, the Azad Jammu and Kashmir Government Act, 1970 was promulgated in the light of UNCIP resolutions. The High Court was established under sub-section (1) of Section 25 of the Azad Jammu and Kashmir Government Act, 1970. Sub-section (1) of Section 25 postulates that the High Court shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Legislative Assembly and under sub-section (3), the persons holding the office of Chief Justice and Judges of the High Court immediately before the commencement of the Act, 1970 were deemed to have been appointed under this Act. The procedure and mode of appointment was not provided in the Act. The mode of appointment remained the one provided in the Courts and Laws Code, 1949.
14.In 1974, the Azad Jammu and Kashmir Legislative Assembly enacted the Act, 1974, ,where a complete judicial set up was provided. Section 43 of the Act, 1974 provides the Constitution of the High Court and appointments of Judges. It will be useful to reproduce Section 43 which is as under:-- "43. High Court--(1) There shall be a High Court for Azad Jammu & Kashmir, hereinafter called the High Court, which shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Assembly.
(1-A) ..................
(2) The person holding office as Chief Justice or other Judge of the High Court immediately before the commencerment of this Act shall be deemed to be the Chief Justice or other Judge as the case may be, appointed under this Act.
(2-A) A Judge of High Court shall be appointed by the President on the advice of the Council and after consultation-- (a)with the Chief Justice of Azad Jammu & Kashmir, and (b)except where the appointment is that of Chief Justice, with the Chief Justice of the High Court,
(3) ....................
(4) ....................
(5) ...................
(6) ...................
(7) ...................
(8) ..................
(9) .......................
15.The history of appointment of Judges in the High Court is that; in pre-partition era, the Chief Justice and Judges in the High Court were appointed by the Mahraja of Jammu and Kashmir at his sweet will. Similarly under the Courts and Laws Code, 1949 the Chief Justice and Judges were appointed by the Azad Jammu and Kashmir Government at its discretion which was clearly against the independence of the judiciary. For the first time a marked change was brought in the Act, 1974, whereby the process of consultation was introduced for the appointment of Judges in the superior judiciary on the pattern of Constitution of India and the Constitution of Islamic Republic of Pakistan, 1956, 1962 and 1973.
16.The process for filling in the vacancies of the Judges in the High Court was initiated by the President in September 2005 and the names of the appellants were included in the panel sent by the then Chief Justice of the High Court, Mr. Justice Muhammad Reaz Akhtar Chaudhry, while their names were not included in the panel sent by Mr. Justice Khawaja Muhammad Saeed, Chief Justice of Azad Jammu and Kashmir (as he then was). Mr, Justice Muhammad Reaz Akhtar Chaudhry, Chief Justice, High Court, later on was elevated as Judge of the Supreme Court and on the retirement of Chief Justice of Azad Jammu and Kashmir, he was appointed as Chief Justice of Azad Jammu and Kashmir on 27th October, 2006, whereas Sardar Muhammad Nawaz Khan, the then senior most Judge, of the High Court, was appointed as Acting Chief Justice of the High Court on 10th October, 2006 who retired as Acting Chief Justice on 31st December, 2009. He remained the Acting Chief Justice for a period of more than three years as he was not appointed as permanent Chief Justice of the High Court.
17. In view of the arguments advanced by the learned counsel for the parties and the background of the case, following points can be formulated for determination by this Court:--
(i) Whether in presence of Section 42-E of the Act, 1974, the writ petition is competent against the appointment of a Judge;
(ii) Whether the appointment of a Judge in the High Court can be made with the consultation of the same person acting in two capacities as Chief Justice of the High Court and the Chief Justice of Azad Jainmu and Kashmir at different times and can such consultation be treated as a valid consultation; and (iii)Whether an Acting Chief Justice can be consulted for the purpose of appointment of a Judge.
18. First of all we would like to resolve the question of maintainability of the writ petition. Under Section 43(2-A), a Judge of the High Court has to be appointed by the President on the advice of the Council and after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court. The president has to consult both the Chief Justices and seek advice from the Council before he issues an appointment order of a Judge. In the last two decades, the consultation process has attracted the attention of the superior judiciary of Pakistan and India and a large number of authoritative judgments have been passed. In the case titled Supreme Court Advocates-on-record Association and another v. Union of India [AIR 1994 SC 268], the Indian Supreme Court expressed its authoritative view on the process of consultation. The process of consultation attracted the attention of the Supreme Court of Pakistan in a famous case titled Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another [PLD 1996 SC 324], and an authoritative judgment was delivered by the Court elaborating the consultation process and guidelines were laid down that what can be termed as a valid consultation. Before proceeding further, it will be useful to reproduce Article 193 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution of 1973) and Article 217 of the Indian Constitution. Article 193 of the Constitution of 1973 reads as under:-- "193. Appointment of High Court Judges:--(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) ......................
(3) ......................
Article 217 of the Constitution of Indian reads as under:-- "217. Appointment and conditions of the office of a Judge of a High Court.--(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years: Provided that--
(a) ............................
(b) ...........................
(2) ...........................
(3) ...........................
19.A comparative study. of Constitution of 1973, the Constitution of India and the Act, 1974 would show that a Judge, in the High Court of Pakistan is appointed by the President after consultation with the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the High Court concerned. There are three consultees in the process while in the Act, 1974, a Judge in. the High Court is appointed by the President on the advice of the Council after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court. A marked difference between. Section 43(2-A) and Article 193 of the Constitution of 1973 is that in the, Act, 1974 there are only two consultees and a Judge has to be appointed on the advice of the Council (the Prime Minister of Pakistan is the Chairman of the Council), while in Article 193 of Constitution of 1973, the word 'advice' is missing. Here we may observe that under Article 48 of the Constitution of 1973 the advice of Prime Minister is binding on the President. Similar provision exists in Section 7 of the Act, 1974. There is a distinction in Article 48 of Constitution of Pakistan and Section 7 of the Act, 1974, which are reproduced as under:-- Article 48 of the Constitution of Islamic Republic of Pakistan reads as under-- "48. President to act on advice, etc.--(1) In the exercise of his functions, the President shall act on and in accordance with the advice of the Cabinet or the Prime Minister: Provided that within fifteen days the President may require the Cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall, within ten days 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 and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever.
(3) committed.
(4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any Court, tribunal or other authority.
(5) Where the President dissolves the National Assembly, notwithstanding anything contained in clause (1), he shall,-- (a)Appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly; and (b)Appoint a care-taker Cabinet.
(6) If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered by either "Yes" or "No".
(7) An act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum."
Section 7 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is reproduced as under:-- "7. President to act on advice, etc.--(1) Subject to an expressed provision to the contrary in this Act, in the performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him.
(2) The question whether any, and if so what advice was tendered to the President by the Prime Minister shall not be enquired into any Court."
20.A comparative study of both the provisions would show that the provisions of Article 48 of the Constitution of 1973 and Section 7 of the Act, 1974, are different to some extent. The words "subject to an express provision to the contrary in this Act" appearing in Section 7 of the Act, 1974 are missing in Article 48 of the Constitution of 1973, which shows that in the Act, 1974 there is some provision contrary to Section 7 but in Constitution of 1973 there is no provision contrary to Article 48.
In the Constitution of 1973, the word "advice" appears in Article 48 only, while in the Act, 1974, the word "advice", apart from Section 7, appears in Section 42(4) and Section 43(2-A) of Act, 1974 for different purposes. A Judge in Supreme Court of Pakistan is appointed under Article 177 by the President after consultation with the Chief Justice of Pakistan and a Judge in the High Court is appointed by the President after consultation with the Chief Justice of Pakistan, Governor concerned and the Chief Justice of the High Court concerned under Article 193, while under Sections 42(4) and 43(2-A) of the Act, 1974, a Judge in the Supreme Court is appointed by the President on the advice of the Council and after consultation with the Chief Justice of Azad Jammu and Kashmir and a Judge in the High Court is appointed on the advice of the Council after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court. The advice of the Prime Minister under Section 7 of the Act, 1974 is not relevant for the purpose of the appointment of Judges.
21. The word 'consultation' appearing in Article 193 of Constitution of 1973 with both the Chief Justices also finds place in Section 43(2-A) of the Act, 1974. Therefore, the enunciation made by the Supreme Court of Pakistan in Al-Jehad Trust's case [PLD 1996 SC 324] is fully applicable while interpreting Sections 42(4) and 43(2-A) of the Act, 1974 for the purpose of appointment of Judges in the Supreme Court and the High Court.
It was observed in Al-Jehad Trust's case [PLD 1996 SC 324] at Page 529 as under:-- "The words 'after consultation' mentioned in Articles 177 and 193 of the. Constitution envisage participatory consultative process between consultees and the appointing authority. The Chief Justice of Pakistan, as also the Chief Justice of High Court concerned have the best expert knowledge about the suitability of a person to be appointed as Judge of the High Court. The other consultee, namely, the Governor of the Province may provide adequate information about character of the candidate. All the consultees contemplated in the abovementioned provisions of the Constitution have vital role to play in the matter. The opinion of the Chief Justice of Pakistan, however, would deserve significant importance to select best persons for securing the independence of Judiciary. The opinion of the Chief Justice of High Court and the Chief Justice of Pakistan having direct knowledge about the suitability of the candidate can therefore be not ignored for any extraneous reason, and in case of disagreement, the appointing authority is required to record sound reasons which will be justiciable. It, therefore, follows that if a person is declared unfit by the Chief Justice of the High Court, as also the Chief Justice of Pakistan, for appointment as Judge, he cannot be validly appointed, and if appointed it will not be a proper exercise of the jurisdiction vested in the appointing authority.
The perusal of Article 193 of the Constitution shows that the appointment of a Judge of High Court is made by the President after consultation with the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the High Court (except where the appointment is that of a Chief Justice). The President has to consult three persons when making appointment of a Judge. The appointment of a Judge is a Constitutional appointment and a mode thereof is provided in the Constitution itself. The consultation required by the President from the consultees cannot be deemed to be a formality. Learned counsel for the parties, as also the learned counsel who assisted the Court as amicus curiae were unanimous in submitting that the consultory process envisaged in the above-noted provision is mandatory and valid appointment of a Judge or his confirmation cannot be made without resorting to consultory process. The Chief Justice of the High Court and the Chief Justice of Pakistan if give a positive opinion about the suitability of a candidate, but the Governor on the basis of information received about his antecedents gives negative opinion, the President is empowered to decline the appointment of the candidate. On the other hand, if the Chief Justice of the High Court and the Chief Justice of Pakistan give a negative opinion about a candidate on the basis of their expert opinion that candidate cannot be appointed and in this way the opinion of the Chief Justice cannot be ignored and due weight is to be given to his opinion. The extended meaning given to the word 'Consultation' is mainly for the reason that it secures the independence of Judiciary. The due deference is to be attached to the opinion of the Chief Justice of Pakistan and the Chief Justice of the High Court due to their exalted position as envisaged in Islam, so that the appointment of the Judges are made in a transparent manner on the basis of the merits alone."
In a case titled M.D, Tahir v. Federal Government and 12 others [1989 CLC 1369], it has been observed as under:-- "......As regards the mode of consultation, as long as, there is reasonable passing of information, on the matter in issue, between the authorities concerned, the requirement of law is satisfied. In Desai's Law Lexicon placed before us by the petitioner, it is clearly stated that the form of consultation is not material but the substance is important."
22. The Supreme Court of Pakistan in a case titled Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others [PLD 1997 SC 84], again reiterated the earlier view at page 134. It was observed in paragraph 66 as under:-- `66. The third point is whether appointment of Judges is executive power/action. This Court has already rendered authoritative judgment in the case of appointment of Judges in the superior Courts (PLD 1996 SC 324) in which all the Articles relating to judicature in the Constitution of 1973 have been interpreted to determine the scope of the word 'consultation' in respect of appointments and such other allied matters. It is held as under:--
(i) The words 'after consultation' employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or un-fairplay. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.
(ii)If President/Executive appoints a candidate found to be unfit and unsuitable for Judgeship by the Chief Justice of Pakistan and Chief Justice of the High Court concerned, it will not be a proper exercise of power under relevant Article of the Constitution.
(iii)That the permanent vacancies occurring in the office of the Chief Justice and Judges normally should be filled in immediately by not later than 30 days but a vacancy occurring before the due date on account of death or for any other reason, should be filled in within 90 days on permanent basis."
23.The word 'consultation' used in Section 42(4) and Section 43(2-A) of the Act, 1974 is used in similar sense as used in Articles 177 and 193 the Constitution of Pakistan 1973. The Supreme Court of Pakistan has held that the consultation 'should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint or arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for Judgeship is to be accepted in absence of sound reasons to be recorded by the 'President/Executive. While applying the above criteria, we will decide the matter in hand.
24. Ch. Shaukat Aziz and others, respondents, challenged the appointment of the appellants in writ jurisdiction on the ground that there was no proper consultation and the appointment order of the appellants is against the Constitutional provisions. We agree with Mr. S.M. Zafar that under Section 42-E of the Act, 1974, a Judge of the Supreme Court or the High Court cannot be removed from the office except as provided under said section. But the said section deals with a particular situation, when upon information received from the Supreme Judicial Council or any other source, the Chairman of the Council or the President is of the opinion that a Judge of the High Court or the Supreme Court may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct, the Chairman or the President, as the case maybe, shall direct the Supreme Judicial Council to enquire into the matter.
The question before the Court is not that of removal of a Judge on the ground of physical or mental incapability or a Judge being guilty of misconduct, the question is whether the appointment order of the appellants is valid or is against the Constitutional provisions.
Objection to the maintainability of writ petition has been raised on the strength of sub-section (5) of Section 44 of the Act, 1974 which is reproduced asunder:-- "(5) In this section, unless the context otherwise requires, `person' includes, any body politic or corporate, any authority of or under control of the Council or the Government and any Court or tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court, or a Court or Tribunal established under a law relating to the Defence Services."
While relying upon the provision, it was argued that the Supreme Court and the High Court Judges are not included in the definition of 'person', therefore, the writ petition was not maintainable. The language of Section 44(5) of the Act, 1974 and Article 199(5) of the Constitution of 1973 is similar.
Clause (5) of Article 199 of the Constitution of 1973 is reproduced as under:-- "(5) In this Article, unless the context otherwise requires-- `person' includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and prescribed law officer' means-- (a)in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and (b)in any other case, the Advocate-General for the Province in which the application is made."
25.A comparison of both the provisions would show that same wording has been employed in the Act, 1974 which is used in Clause 5 of Article 199 of the. Constitution of 1973. The writ petition has not been filed against the High Court or a judgment of the High Court, rather it has been filed against a notification issued by the President/Executive being against the provisions of the Act, 1974.
26.It is celebrated principle of law that when a particular method for performance of an act is prescribed under an Act or Rules, then such act must be performed according to that particular method or not at all as has been laid down in a case titled Habibullah v. D.I.G. Police and 3 others [2004 SCR 378]. The relevant observation is reproduced as under: ".........It is a settled proposition of law that when a particular method of performance of an act is prescribed under an Act or Rule then such act must be performed according to the prescribed method alone or not at all."
In another case titled Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another [2008 SCMR 1148], it was observed by the Supreme Court of Pakistan as under: ".......It is also settled proposition of law that if law has provided to a particular act in a particular manner the same is to be done in that particular manner or not."
Similarly in a case titled Raja Hamayun Sarfraz Khan and others v. Noor Muhammad [2007 SCMR 307], it was observed by the Supreme Court of Pakistan as under: "........It is a settled law that when a thing is to be done in a particular manner, it must be done in that way and not otherwise as the law laid down by this Court in Atta Muhammad Qureshi's case PLD 1971 SC 61."
27. The proposition attracted the attention of this Court and the Supreme Court of Pakistan in a number of cases. In the case titled Ghulam Mustafa Mughal and another v. AJK Government through Chief Secretary and 5 others [PLJ 1993 SC (AJ&K) 105], the Azad Jammu and Kashmir Government appointed some Additional Judges without the advice of the Council. Mr. Ghulam Mustafa Mughal, President of Central Bar Association, Muzaffarabad and another, challenged the appointment of Judges through a writ of quo warranto. The writ, petition was dismissed, however, on appeal, this Court, while going through the case law on the subject, resolved' that a Judgment of the High Court cannot be challenged by way of writ petition but the appointment of a Judge can be challenged through a writ of quo warranto. While dealing with the proposition, it was observed at pages 122 to 124 as under: "..........However, if appointment of a Judge of the High Court is challenged by way of a writ of quo warranto what is in fact under challenge is the appointment of the Judge which is made not by the High Court or the Supreme Court but by the President. Therefore what has to be examined by the High Court is in fact the action of an authority outside the Courts and no order of Court is under challenge. On the question of maintainability of a quo warranto against a Judge, a judgment of this Court is already in existence. The judgment which is reported as Amjad Hussain v. Ghulam Rasool Mir (1991 PCr.LJ 685), was cited before the High Court. But it was found to be distinguishable in paragraphs 35 and 36 which are reproduced below: `35. The learned counsel for the petitioners referred an unreported judgment of the Supreme Court of Azad Jammu and Kashmir titled 'Amjad Hussain and others v. Ghulam Rasool Mir and others" in support of the proposition that the appointment of a Judge is open to challenge by seeking a writ of quo warranto and not raising an objection by a party in private litigation. This authority is distinguishable on facts and laws because in this case the appointment of Respondent No, 5 as Additional Judge of the Shariat Court was challenged on the ground that before his appointment as Additional Judge of the Shariat Court, the Chief Justice of the Shariat Court was not consulted. In the light of these facts, the learned Supreme Court of Azad Jammu and Kashmir held that the appointment of the Judge can be questioned through a writ of quo warranto. The relevant parts of Section 44 along-with sub-clause (5) of the Act-are reproduced below:--
36. As is apparent from sub-clause (5) of Section 44 of the Act, the Shariat Court has not been excluded from term 'person'. It was, in these circumstances, that the learned Supreme Court observed that the appointment of a Judge of the Shariat Court can be called in question through a writ of quo warranto. The learned counsel for the parties referred some other authorities during the course of their arguments. As these authorities are distinguishable both on, facts and law, therefore, we refrain from quoting them in this order.'
It is true that in Amjad Hussain's case the appointment of the Judge of the Shariat Court was in dispute but, I say so with great respect, it is not true that the judgment of this Court was distinguishable on facts or law. In that judgment it was clearly held that "defecto doctrine" was applicable and in doing so we did not create any distinction between Judge of the Shariat Court and Judge of the High Court. It is true that the Judge whose appointment had been challenged collaterally was a Judge of Shariat Court and not of a High Court, but a perusal of the judgment would show that the cases which were considered by this Court to reach the conclusion were not Judges of Shariat Court The following passage from the judgment written by Sardar Said Muhammad Khan, CJ. is instructive:-- 'It is amply clear that the law on the question in dispute is settled that a judgment or order passed by de facto Judge cannot be set aside on the ground that the appointment of a Judge was violative of law. The view rests upon the doctrine of necessity and public policy. If the parties are permitted to raise the aforesaid objection in private litigation, it would cause embarrassment to the Judge and open the door to attack the authority of the Judge in private proceedings to which the concerned Judge is not a party and no opportunity to defend him is given. The appointment of a Judge is open to challenge by seeking a writ of quo warranto and not by raising an objection by a party in private litigation. This view is not only followed by the superior Courts of Pakistan and India but also the Courts in United States of America and United Kingdom.'
It is thus clear from the paragraph quoted above that it was clearly laid down that the appointment of a Judge cannot be challenged collaterally and in such a situation only a writ of quo warranto would lie. I may observe that India, United Kingdom and United States of America have been mentioned and none of them have any Shariat Court. Even an obiter dicta of this Court has a binding effect and I say so with great respect to the learned Judges of the High Court, that the reasons which led them to the conclusion that Amjad Hussain's case was distinguishable are not sustainable in view of the clear statement of law in the passage quoted above that a quo warranto writ is maintainable against a Judge which does not mean only a Shariat Court Judge.
This reason alone is sufficient to show that the order of dismissal of the writ petition cannot be maintained."
28. The provision of Clause 5 of Article 199 of the Constitution of 1973 attracted the attention of the Supreme Court of Pakistan in a recent landmark judgment titled Chief Justice of Pakistan Iftikhar Muhammad Chaudhry u. President of Pakistan through Secretary and others [PLD 2010 SC 61], while dealing with the maintainability of writ petition against a Judge, it has been observed as under:-- "100. A reference to Clause (5) of Article 199 of the Constitution would also be of assistance in the matter. The said provision reads as under:-- `(5) In this Article, unless the context otherwise requires, `Person' includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and Any Court Or Tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; (Emphasis and underlining has been supplied).
Needless to mention that the power to issue writs emanates from Article 199 of the Constitution which authorizes the High Courts to issue writs and Article 184(3) thereof, in turn, permits this Court to make orders of the nature mentioned in the said Article 199. A perusal of the above-quoted clause (5) reveals that while the said Article allowed issuance of writs, inter alia, to all Courts and tribunals of all kinds, it kept certain Courts and tribunals outside the said purview and commanded that no writ could issue to the Supreme Court of Pakistan, to a High Court and to a Court or a tribunal established under any law relating to the Armed Forces. The significant omission of the Supreme Judicial Council from this protected arena is more than revealing in the matter of determining the vulnerability of the said Council to writ jurisdiction.
101. As has been mentioned above, the principle of maintaining comity among the Judges of the Superior Courts was also canvassed to screen the proceedings before the S.J.C. from scrutiny by this Court. A passing reference to this principle was made by this Court in Mian Jamal Shah's Case (PLD 1966 SC 1 at 38). But then it was subsequently clarified that the said principle could never be stretched to deprive people of what was due to them. What emerges from the provisions of clause
(5) of Article 199 of the Constitution as also from some precedent cases is that 4vrits should not issue from one High Court to another High Court or from one Bench of a High Court to another Bench of the same High Court because that could seriously undermine and prejudice the smooth and harmonious working of the Superior Courts. But this should never be understood to mean that no writ could ever issue to a Judge in his personal capacity or where a Judge was working as a Persona Designata. Two passages from a judgment of this Court delivered in Abrar Hassan's Case (PLD 1976 SC 315 at 342 and 350) which contain the views of Salah-ud-Din J. and Muhammad Gul J.
(as their lordships then were), respectively, could offer the requisite guidance and are reproduced below: -- Per Salah-ud-Din, J.
"The propriety of maintaining comity amongst the members of the superior judiciary is not a rule of law, and certainly can not outweigh the imperative necessity of correctly interpreting the Constitution. It must be left to the good sense of the gentlemen who are members of the Superior Courts to behave in a manner which their high offices require.'
Per Muhammad Gul, J.
".....it would not be right to lay down that to preserve the high degree of comity in the Superior Judiciary, the plain meanings of Art. 199(i)(ii) of the Constitution should be curtailed or abridged.
Maintenance of comity among the Superior Judiciary is at the highest, a rule of propriety and not a rule of law and therefore cannot erode a constitutional provision..."
In the light of the enunciation made by this Court and the Supreme Court of Pakistan in the above referred cases, it is held that the executive orders can be challenged in the writ petition and the writ of quo warranto was competently filed and Section 42-E of the Act, 1974 is no bar in filing the writ petition.
29. The most important question in the appeals is whether the consultation with one person in two different capacities, i,e,, the Chief Justice of the High Court and the Chief Justice of Azad Jammu and Kashmir, at two different times, can be treated a valid consultation. According to the facts of the instant case, upon creation of two vacancies of Judges in the High Court, the President initiated the process of consultation with the Chief Justices of the time in September, 2005 by seeking panels of the eligible candidates for Judgeship. The respective Chief Justices sent the panels of the eligible persons to the President in the month of November/December, 2005. No appointments were made on the basis of these recommendations. In the meantime, new elections were held in Azad Jammu and Kashmir and new President was elected. Mr. Justice Muhammad Reaz Akhtar Chaudhry, Chief Justice of the High Court, was elevated as Judge of the Supreme Court. Soon after Mr. Justice Khawaja Muhammad Saeed, Chief Justice of Azad Jammu and Kashmir, attained the age of 65 years and was retired. On his retirement, Mr. Justice Muhammad Reaz Akhtar Chaudhry was appointed as permanent Chief Justice of Azad Jammu and Kashmir. Since two vacancies of permanent Judges were lying vacant in the Azad Jammu and Kashmir High Court for a period of more than one year, the new President, realizing the gravity of situation and heavy load of work in the High Court, felt his Constitutional duty to complete the High Court by appointing Judges against those vacancies. There was no permanent Chief Justice in the High Court who could be consulted for the appointment of a Judge in the High Court. While acting under the guidelines laid down in Al-Jehad Trust's case [PLD 1996 SC 324], the President bonafidely wrote a letter to the Chief Justice of Azad Jammu and Kashmir on 8th November, 2006, apprising him that a panel was received vide letter dated 6th December, 2005 for appointment of Judges in the High Court and appointments have not been made so far. The President sought the opinion of the Chief Justice of Azad Jammu and Kashmir in respect of three Advocates including the appellants. The Chief Justice, vide letter dated 16th December, 2006, opined that he had already recommended he appellants, herein, for appointment as Judges of the High Court in the capacity of Chief Justice of the High Court, therefore, he has no objection on their appointment as Judges of the High Court.
While acting upon the recommendations made by Mr. Justice Muhammad Reaz Akhtar Chaudhry as Chief Justice of the High Court on 6th December, 2005 and letter dated 16th December, 2006 addressed in the capacity of Chief Justice of Azad Jammu and Kashmir, the Council issued the advice on 20th January, 2007 and notification of appointment of the appellants dated 23rd January, 2007 was issued.
30. What transpires from the record is that the President wrote a letter for consulting the Chief Justices for filling in the two vacancies of the Judges of the High Court on 8th September, 2005. The Chief Justice of the Azad Jammu and Kashmir and the Chief Justice of the High Court sent the panels of eligible persons to the President in the month of November/December, 2005. The panel sent by the Chief Justice of the High Court contained the names of the present appellants including the others while the Chief Justice of the Azad Jammu and Kashmir did not recommend the names of the appellants. In the result of new elections new President was elected in the month of August, 2006. In October, 2006, the Chief Justice of High Court was elevated "as Judge of the Supreme Court and Sardar Muhammad Nawaz Khan took oath as Acting Chief Justice of the High Court. In the same month of October, 2006, Mr. Justice Muhammad Reaz Akhtar Chaudhry was appointed as Chief Justice of Azad Jammu and Kashmir and in the month of December, 2006, who recommended the appellants for appointment as Judges of the High Court. On the basis of his recommendations as Chief Justice of the High Court made in December, 2005 and recommendations made as Chief Justice of Azad Jammu and Kashmir in the month of December, 2006, after a period of one year, the advice was issued by the Council for the appointment of the appellants as Judges of the High Court. Can consultation made by one President with a person in the capacity of Chief Justice of High Court and the consultation by the new President, made with the same person in the capacity of Chief Justice of Azad Jammu and Kashmir, after a period of one year, be treated a valid consultation. As we have already observed that the word `consultation' is used in the Constitution of 1973, Constitution of India and the Act, 1974, in similar sense and process of appointment of a Judge by the President cannot be completed without consultation of the relevant consultees who, in the case of Azad Jammu and Kashmir, are Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court. The words 'after consultation' employed in Articles 177 and 193 of the Constitution of 1973 are interpreted in Al-Jehad Trust's case [PLD 1996 SC 324] at page 364 as under:-- "7. Our conclusions and directions in nutshell are as under:-- The words 'after consultation' implied inter, alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive."
31.In case titled Supreme Court Advocates-on-Record Association and another v. Union of India [AIR 1994 SC 268], the Supreme Court of India, dealt with the word "consultation" and elaborated the same in Paragraphs 120, 184, 209 and 210. The aforesaid paragraphs are reproduced as under:- - "120. It is clear that under Article 217(1), the process of 'consultation' by the President is mandatory and this clause does not speak of any discretionary 'consultation' with any other authority as in the case of appointment of a Judge of the Supreme Court as envisaged in clause (2) of Article 124. The word 'consultation' is powerful and eloquent with meaning, loaded with undefined intonation and it answers all the questions and all the various tests including the test of primacy to the opinion of the CJI. This test poses many tough questions, one of them being, what is the meaning of the expression `consultation' in the context in which it is used under the Constitution. As in the case of appointment of a Judge of the Supreme Court and the High Court, there are some more constitutional provisions in which the expression `consultation' is used."
"184. In the light of the above view-expressed in Sankal Chand & some of the Judges in Gupta's case, it can be simply held that consultation with the CJI under the first proviso to Art:124(2) as well under Art. 217 is a mandatory condition, the violation of which would be contrary to the constitutional mandate."
"209. When an argument was advanced in Gupta's case (AIR 1982 SC 149) to the effect that where there is difference of opinion amongst the Constitutional functionaries required to be consulted, the opinion of the CJI should have primacy, since he is the head of the Indian Judiciary and paterfamilias of the judicial fraternity, Bhagwati, J. rejected that contention posing a query, as to the principle on which primacy can be given to the opinion of one constitutional functionary, when clause (1) of Article 217 places all the three constitutional functionaries on the same pedestal so far as the process of consultation is concerned. The learned judge by way of an answer to the above query has placed the opinion of the CJI on par with the opinion of the other constitutional functionaries. The above answer, in our view, ignores or overlook the very fact that the judicial service is not the service in the sense of employment, and is distinct from other services and that the members of the other services cannot be placed on par with the members of the judiciary, either constitutionally or functionally'. (See All India Judges' Association and others case (1993 (4)
JT(SC) 618) (supra). There are innumerable impelling factors which motivate, mobilise and import momentum to the concept that the opinion of the CJI given in the process of 'consultation' is entitled to have primacy. They are:--
(1) The 'Consultation' with the CJI by the President is relatable to the judiciary and not any other service.
(2) In the process of various Constitutional appointments, `consultation' is required only to the judicial office in contrast to the other high ranking constitutional offices. The prior 'consultation' envisaged in the first proviso to Article 124(2) and Article 217(1) in respect of judicial offices is a reservation or limitation on the power of the President to appoint the Judges to the superior Courts.
(3) The 'consultation' by the President is a sine-qua-non or a condition precedent to the exercise of the constitutional power by the President to appoint Judges and this power is inextricably mixed up in the entire process of appointment of Judges as an integrated process. The 'consultation' during the process in which an advice is sought by the President cannot be easily brushed aside as an empty formality or a futile exercise or a mere casual one attached with no sanctity.
(4) The context in which the expression 'shall always be consulted' used in the first proviso of Article 124(2) and the expression 'shall be appointed after consultation' deployed in Article 217(1) denote the mandatory character of `consultation', which has to be and is of a binding character.
(5) Articles 124 and 217 do not speak in specific terms requiring the President to consult the executive as such, but the executive comes into play in the process of appointment of Judges to the, higher echelon of judicial service by the operation of Articles 74 and 163 of the Constitution. In other words, in the case of appointment of Judges, the President is not obliged to consult the executive as there is no specific provision for such consultation.
(6) The President is constitutionally obliged to consult the CJI alone in the case of appointment of a Judge to the Supreme Court as per the mandatory proviso to Article 124(2) and in the case of appointment of a Judge to the High Court, the President is obliged to consult the CJI and the Governor of the State and in addition the Chief Justice of the High Court concerned, in case the appointment relates to a Judge other than the Chief Justice of that High Court. Therefore, to place the opinion of the CJI on par with the other constitutional functionaries is not in consonance with the spirit of the Constitution, but against the very nature of the subject matter concerning the judiciary and in opposition to the context in which 'consultation' is required. After having observed that the 'consultation' must be full and effective by Bhagwati, J. in Gupta's case there is no conceivable reason to hold that such 'consultation' need not be given primary consideration.
(7) The very emphasis of the word 'always be consulted' signifies and indicates that the mandatory consultation should be unfailingly made without exception on every occasion and at every time by the President with the constitutional consultees."
"210. In the background of the above factual and legal position, the meaning of the word 'consultation' cannot be confined to its ordinary lexical definition. Its contents greatly vary according to the circumstances and context in which the word is used as in our Constitution."
32. While applying the above criteria laid down by the Supreme Court of Pakistan in Al-Jehad Trust's case [PLD 1996 SC 324] and Supreme Court Advocates-on-record's case [AIR 1994 SC 268], we have to look into the peculiar fact that whether the consultation made by one President in December, 2005 with the Chief Justice of High Court and the consultation made by the new President with the Chief Justice of Azad Jammu and Kashmir in December, 2006, after one year, is a valid consultation or, not.
33. The phraseology employed in Section 43(2-A) of the Act, 1974 when analysed in the light of referred authorities, denotes that before issuing the appointment order, the President has to consult the two Chief Justices and seek advice from the Council. Now the question arises, whether consultation with both the Chief Justices is required to be made at the same time or it is the sweet- will of the President to consult one Chief Justice at one time and after a lapse of considerable time, consult the other Chief Justice. In our view, there is no ambiguity in the provisions of Constitution which can rightly be interpreted that the scheme of Constitution is to consult both the Chief Justices at the same time otherwise the consultation will be meaningless. Admittedly in this case the consultation with both the Chief Justices was not simultaneous but at different times involving a period of more than one year, it cannot be said a valid consultation, especially after the elevation of the Chief Justice of the High Court as Judge of the Supreme Court, no consultation was made with the Chief Justice of the High Court. The appointment of a Judge in the High Court has to be made when there is a vacancy and both the Chief Justices, i,e,, the Chief Justice of the High Court and the Chief Justice of Azad Jammu and Kashmir have to be consulted at the same time. The process of appointment of Judges has to be initiated by the President because he has to consult the relevant consultees who are the Chief Justices. The argument that the consultation with one person in different capacities can be made on two different times is against the prudence and canons of interpretation. The relevant time for consulting the two Chief Justices is when there is a vacancy and the President initiates the process for the appointment of a Judge. In the present case the President initiated the process for appointment of Judges in the month of September, 2005 and both the Chief Justices sent the panels in the month of November/ December, 2005. The Council was to issue the advice on the basis of consultation made by the President with both the Chief Justices in November/December, 2005 and the recommendations made thereof by two Chief Justices in the written form to the President at the same time was a valid consultation. The recommendations of Chief Justice of the High Court on a particular date and recommendation of the Chief Justice of Azad Jammu and Kashmir after one year, cannot be termed as a valid consultation. The time for consultation is material in the process. The panel sent by one Chief Justice of the High Court one year back cannot be treated a valid consultation particularly when the Chief Justice of Azad Jammu and Kashmir had not recommended the persons recommended by the Chief Justice of the High Court at the relevant time.
34. Mr. S.M. Zafar laid a great stress on the point that situation was such that there was no option available to the Council at the time of issuance of advice as there was no Chief Justice in the High Court. There was only Acting Chief Justice, therefore, the Council was justified in issuing the advice while relying upon the consultation of the Chief Justice of Azad Jammu and Kashmir made in December, 2006 and by the same person in the capacity of Chief Justice of the High Court in the month of December, 2005. We are afraid that the acceptance of this argument will give rise to arbitrariness. Such consultation cannot be termed as meaningful, purposive and consensus- oriented.
35.The process of appointment of a Judge in the High Court has to be initiated by the Chief Justice of the High Court when the President seeks panels for the purpose of consultation. The Chief Justice shall immediately send the panel of eligible persons to the President who shall send the same to the Chief Justice of Azad Jammu and Kashmir and after seeking the panel from him, seek the advice from the Council for issuing the appointment orders.
36.There is an unfortunate history of appointments of Chief Justices in Azad Jammu and Kashmir.
Ch. Rahim Dad Khan, the then Chief Justice of Azad Jammu and Kashmir was appointed as.
Chairman of Azad Jammu and Kashmir Shariat Court on 8th October, 1980. On the same day, Raja Muhammad Khurshid Khan, the next senior Judge of the Supreme Court was appointed as Acting Chief Justice, who continued as Acting Chief Justice of Azad Jammu and Kashmir till 2.6.1987. He remained the Acting Chief Justice of Azad Jammu and Kashmir for a period of almost seven years.
A number of vacancies of Judges in the High Court and the Supreme Court fell vacant. There was also need for appointment of ad hoc Judges in the Supreme Court for want of quorum. According to the record of this Court (consulted by us) Mr. Justice Sher Zaman Chaudhry and Mr. Justice Qazi Abdul Ghafoor were appointed as permanent Judges of the High Court on the recommendations of Raja Muhammad Khurshid Khan, Acting Chief Justice of Azad Jammu and Kashmir, while a number of Judges was appointed as ad hoc Judges on the recommendations of the Acting Chief Justice of Azad Jammu and Kashmir. Similarly, the Chief Justice of High Court, Mr. Justice Abdul Majeed Mallick, was appointed as ad hoc Judge of the Supreme Court and Mr. Justice Sardar Muhammad Ashraf Khan was appointed as Acting Chief Justice of the High Court. Permanent Judges were appointed in the High Court on the recommendations of the Acting Chief Justice of Azad Jammu and Kashmir and the Acting Chief Justice of the High Court. The appointment of one of the Judges was challenged by way of writ petition. The writ petition was dismissed and the High Court observed that such Acting Chief Justice who has expectancy to be appointed as permanent Chief Justice can validly recommend a person for appointment as Judge. In the case reported as Raja Bashir Ahmed Khan vs. Azad Jammu & Kashmir Council & 2 others [PLJ 1997 Azad J&K 70], it was observed as under: "It is our considered opinion that in the light of the above referred facts, all the acts performed by Sardar Muhammad Ashraf Khan in his capacity as Acting Chief Justice had not only de facto validity but had acquired the de jure validity by reasons of the un-questioned recognition, extended to them by the Courts in Azad Kashmir and later on by the Constitution itself after it was amended strictly in accordance with the above quoted provisions contained in Section 5(1-A) of the Azad Jammu and Kashmir Courts and Laws Code, 1949. The validity of the act done by him including drawing of panel of eligible persons for their elevation as Judge of the High Court, is therefore, no longer open to challenge.
In view of the above, there is no justification for us to issue notice to the respondent-Judge that under what authority of law he is holding the office of Judge of the High Court. In the light of the above reasoning, this writ petition is dismissed in limine."
37. The matter of recommendations by the Acting Chief Justice also came under consideration before the Supreme Court of Pakistan in Al-Jehad Trust's case [PLD 1996 SC 324]. It was observed by Mr. Justice Sajjad Ali Shah, C.J. (as he then was) at Page 407, Paragraphs 85 and 86 as under:-- "85. We are of the view that Acting Chief Justices are appointed for a short time and for that reason, in the relevant Articles, automatic arrangement is provided particularly in the appointment of the Acting Chief Justice of Pakistan, but no criterion is laid down in the provision of appointment of Acting Chief Justice of the High Court. In all fairness, the period for such acting appointment should not be more than ninety days during which Acting Chief Justice may perform functions of routine nature excluding 'recommendations' in respect of appointment of Judges. We say so for three reasons. Firstly, Article 180, which provides for appointment of the Acting Chief Justice of Pakistan and 196, which provides for appointment of the Acting Chief Justice of a High Court, do not specifically provide that they can participate in the consultative scheme of the appointment of the Judges as envisaged in the Constitution. Secondly, Acting Chief Justices are supposed to be functioning for short time and, therefore, it would not be fair to allow them to interfere with policy- making matters and appointments in the Judiciary which should be left for permanent incumbents. Thirdly, Article 209 of the Constitution contemplates the composition of the Supreme Judicial Council which is supposed to be comprised of (a) the Chief Justice of. Pakistan, (b) two next Senior Most Judges of the Supreme Court, and (c) two most Senior Chief Justices of the High Courts. In the explanation appointment of Acting Chief Justices is expressly excluded which clearly shows that the intention of the Constitution-makers is that the Acting Chief Justices are allowed to function for a short time and more importance is to be attached to permanent Chief Justices and in the absence of permanent Chief Justices of the High Courts or, even for that matter, of the Supreme Court, the composition of the Supreme Judicial Council becomes imperfect and the Body as such becomes unfunctional.
86. There may be exceptional cases in which no control could be exercised over the situation. For instance, after imposition of Martial Law on 5th July, 1977, the Chief Justices of the High Courts were made Governors of the Provinces and in their places in the High Courts Acting Chief Justices were appointed. It so happened that the Chief Justices remained away from the High Courts as the Governors for about fifteen months and Acting Chief Justices had performed their duties. There was Martial Law in the country and the Constitution was held in abeyance and the system under that arrangement had to continue. In such circumstances, the Judges had to be appointed and for such appointments in the High Courts, `recommendations' were made by the Acting Chief Justices.
The Martial Law remained operative for a long time and the Supreme Court gave it cover of validity on the ground of the doctrine of necessity and empowered the CMLA to amend the Constitution.
Article. 270-A was inserted in the Constitution by P.O. No, 14 of 1985, which was substituted by Act, XVIII of 1985 passed by the Parliament to enable withdrawal of Martial Law vide Proclamation dated 30th December, 1985.We are not holding that all the appointments made in the past or for that matter in the distant past on the 'recommendations' of the Acting Chief Justices are void ab initio, because they were validated later in the process and have become past and closed transaction."
38. The pronouncement made in the above referred case that the Acting Chief Justices are appointed for a short time; they can only perform the functions in routine; they cannot recommend a qualified person to be appointed as Judge is correct but at the same time in Paragraph 86, the judgment deals with the situation which prevailed in Pakistan during Martial Law period where the Chief Justices were not confirmed and they remained Acting Chief Justices for a long tithe. On the recommendations of the Acting Chief Justices, the Judges were appointed in the superior judiciary.
As we have already observed that in Azad Jammu and Kashmir there is an unhappy history that the Acting Chief Justices were left to work as Acting Chief Justices for a long period and they were not appointed as permanent Chief Justices. In such a situation, when Chief Justice of the High Court has been elevated as Judge of the Supreme Court, the next senior Judge who has expectancy of becoming a permanent Chief Justice is not appointed as permanent Chief Justice but is appointed as Acting Chief Justice, and is left to work in the same capacity till his retirement.
In such a situation, the President has two options; either he shall leave the post vacant or to consult the Acting Chief Justice. Although it is the duty of the Council, particularly in the light of the judgment in Al-Jehad Trust's case to appoint the permanent Chief Justice within '30 days but in the light of previous history when the Chief Justice is not appointed within a reasonable time, the President has no option except to consult the Acting Chief Justice for the purpose of appointment of Judges. In such like situation, the consultation made by the President with the Acting Chief Justice can be termed as a valid consultation. Sardar Muhammad Nawaz Khan was appointed as Acting Chief Justice on 10th October, 2006. He remained working as Acting Chief Justice till he retired on 31st December, 2009. The Council which had to issue advice to the President for appointment of permanent Chief Justice failed to perform its Constitutional duty. When there was no permanent Chief Justice, in such a situation, the requirement of the Constitution was that the President should have consulted with the Acting Chief Justice of the High Court at the time when the Chief Justice of Azad Jammu and Kashmir was consulted. It should have been a valid consultation.
39. The appellants have placed on record the panels sent by the two Chief Justices in December, 2005 which show that the Chief Justice of Azad Jammu and Kashmir has not recommended the names of the appellants for their appointment as Judges of the High Court while the Chief Justice of the High Court had recommended their names. The appointment of the appellants was made while considering the recommendations made by the Chief Justice of the High Court in December, 2005. and the recommendations made by the same person in the capacity of Chief Justice of the Azad Jammu and Kashmir in December, 2006. This consultation is not a meaningful, purposive, consensus-oriented and valid. The advice issued by the Council appears to be arbitrary one. The opinion of the Chief Justice of Azad Jammu and Kashmir must have primacy, if the Council was considering the recommendation of the Chief Justice of the High Court made in December, 2005 then it had to consider the recommendations made by the Chief Justice of Azad Jammu and Kashmir in December, 2005. The consultation made by the President with the Chief Justice of Azad Jammu and Kashmir in December, 2005 could not be ignored. The Chief Justice of Azad Jammu and Kashmir had not recommended the names of the appellants in December, 2005 as such they could not be considered for the appointment as Judges of the High Court. Non-recommendation by the Chief Justice of Azad Jammu and Kashmir excludes them from being appointed as Judges of the High Court. The opinion of the Chief Justice of Azad Jammu and Kashmir has to be preferred.
If the Chief Justice of Azad Jammu and Kashmir does not think a person suitable to be appointed as Judge of the High Court, he cannot be considered for appointment, as Judge. We are fortified in our view by Al-Jehad Trust's case [PLD 1996 SC 324]. The relevant observations made in Al-Jehad Trust's case at page 491 are reproduced, below:-- "......Since the Chief Justice of the High Court concerned and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations, as pointed out hereinabove, have been consistently accepted during pre- partition days as well as post-partition period in India and Pakistan. I am, therefore, of the view that the words "after consultation" referred to inter alia in Articles-177 and 193 of the Constitution involve participatory consultative process between the consultees and also with the Executive. It should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or unfair play. The Chief Justice of a High Court and the Chief Justice of Pakistan are well equipped to assess as to the knowledge and suitability of a candidate for Judgeship in the superior Courts, whereas the Governor of a Province and the Federal Government are better equipped to find out about the antecedents of a Candidate and to acquire other information as to his character/conduct. I will not say that anyone of the above consultees/functionaries is less important or inferior to the other. All are important in their respective spheres. The Chief Justice of Pakistan, being Paterfamilias i,e, head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely, his views deserve due deference. The object of the above participatory consultative process should be to arrive at a consensus to Select best persons for the Judgeship of a superior Court keeping in view the object enshrined in the Preamble of the Constitution, which is part of the Constitution by virtue of Article 2-A thereof, and ordained by our religion Islam to ensure independence of judiciary."
Similarly the observations made in Supreme Court Advocates-on-record's case [AIR 1994 SC 268] are reproduced as under:-- "329. We conclude:-.
(i) The concept of judicial independence is deeply ingrained in our constitutional scheme and Article 50 illuminates it. The degree of independence is near total after a person is appointed and inducted in the judicial family.
(ii) The method of selecting a Judge for the Supreme Court and the High Court is outlined in Articles 124(2) and 217(1) of the Constitution. While in the United States, the United Kingdom, Australia and Canada appointments to the superior judiciary are exclusively by the executive, our Constitution has charted a middle course by providing for `prior consultation' with the judiciary before the President, i,e, the executive, makes the appointment to the Supreme Court or the High Court.
Therefore, however, convincing it may sound to the ideal of judicial independence that the views of the Chief Justice of India must have primacy as his views expressed after consulting his two senior most colleagues would be symbolic of the views of the entire judiciary, the submission cannot be accepted unless the Constitution is amended. As the constitutional provisions presently stand, the submission based on this line of reasoning is unacceptable.
(iii)Under our constitutional scheme prior consultation with the Chief Justice of India is a must under Articles 124(2), 217(1), 217(3) and 222(1) but the weight to be attached to the views of the Chief Justice of India would depend on whether it is at the pre-appointment stage or the post- appointment stage and whether he is one of the consultees or the sole, consultee.
(iv)The concept of primacy to be accorded, to the views of the Chief Justice of India has three elements, namely, (a) primacy as 'pater families' of Indian Judiciary, (b) primacy to be accorded to his views amongst the consultees mentioned in Articles 124(2) and 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i,e,, the executive.
The position of the Chief Justice of India under the Constitution is unique, in that, on the judicial side he is primus inter pares i,e, first among equals, while on the administrative side he enjoys limited primacy in regard to managing of the Court business. As regards primacy to be accorded to his views vis-a-vis the President, i,e, the executive, although his views may be entitled to great weight he does not enjoy a right of veto, in the sense that the President is not bound to act according to his views. However, his views would be of higher value vis-a-vis the views of his colleagues, more so if he has expressed them after assessing the views of his colleagues but his views will not eclipse the views of his colleagues forbidding the President, i,e, the executive, from relying on them. The weight to be attached to his views would be much greater as compared to the weight to be accorded to the views of the other consultees under Article 217(1) since he has had the advantage of filtering their views and ordinarily his views should prevail except for strong and cogent reasons to the contrary but that does not mean that the views of the other consultees would be rendered irrelevant or non-est forbidding the President, i,e, Executive, from noticing or relying on them. The views of the Chief Justice of India would be entitled to even greater weight when he is the sole consultee under the Constitution, e.g. Article 222(1), moreso when it concerns a member of the Judicial family and ordinarily his view should be accepted and acted upon by the President i,e, the executive, unless there are compelling reasons to act otherwise to be recorded in writing so that the apprehension of the executive having acted in a manner tentamounting to interference with judicial independence is dispelled. Thus, greater weight has to be attached to the views of the Chief Justice of India as indicated hereinabove."
40. We agree that the principle of double personality is not attracted in the present case. Both the offices are independent and consultation with both the offices was required to be made independently. The Chief Justice was not acting in two different capacities at the same time. He acted in different capacities at different times which were independent in nature, whereas the spirit of Constitution is that both the Chief Justices be consulted simultaneously. The authorities referred to have no relevance, therefore, need not be discussed. We may refer a case titled Muhammad Shafi v. Maul Din Khan and 3 others [PLD 1976 Lah. 17] in which it has been observed as under:-- "The orders passed by Syed Hameed Hussain, as Additional Settlement Commissioner smack of something other than straightforward and legal. In the first instance, he cancelled the agreements of associations, on an office report, without issuing a notice to the petitioner. Secondly, he had accepted these agreements of association as Deputy Settlement Commissioner. He could not sit to cancel the same as Additional Settlement Commissioner, therefore, the impugned order passed by the Additional Settlement Commissioner Syed Hamid Hussain, cannot be sustained as no one can act as an original Court or authority and an appellate authority in the same cause."
Similarly in a case titled Mubarik Ali Bhatti v. Mr. Fiayaz Ali Khan, District Manager, Provincial Transport Service, Lyallpur and others [PLD 1963 (W.P.) Lahore 8], it has been held as under: "......Even if there had been no such rule, the hearing of an appeal by an authority who has himself participated in the original proceeding is contrary to the rules of natural justice. We have no doubt that the removal of the petitioner should be set aside on this ground."
41.We have also considered the argument of Mr. S.M. Zafar that the doctrine of bias is applicable in the case of the appellants on the ground that one of the appellants sat as a member of the Supreme Judicial Council where the President made a reference against Mr. Justice Syed Manzoor Hussain Gillani, Acting Chief Justice of Azad Jammu and Kashmir and Mr. Justice Ghulam Mustafa Mughal, Chief Justice of the High Court and parallel Supreme Judicial Council passed the order restraining the Chief Justice of the High Court from functioning as Judge and Chief Justice. Due to this reason, the Chief Justice in the High Court was biased towards one of the appellants and he could not have heard and decided the case.
42.Firstly, there is only application of one of the appellants, Mr. Muhammad Yunus Tahir, that the Chief Justice of the High. Court should refrain from hearing the writ petition. There is nothing on the record for ascertaining that there was any reference filed against the Chief Justice of the High Court, Mr. Justice Ghulam Mustafa Mughal. Leaving aside the fact whether there was any reference against Mr. Justice Ghulam Mustafa Mughal, Chief Justice of the High Court, or not, we have considered the argument in the light of case law referred to by both the parties.
What is bias? The word 'bias' has been defined by the Supreme Court of Pakistan in, a case titled Asif Ali Zardari and another v. The State [PLD 2001 SC 568], in which it has been observed as under:- "18. The foremost question is what is 'bias', Bias has been described in Corpus Juris Secundum, Volume X, pp. 354 and 355 as under:-- `BIAS.--Primarily, a diagonal or slant, especially of a seam, cut, or line across a fabric: and so derivatively, a leaning of the mind; a mental predilection or prejudice; anything which turns a man to a particular course; a particular influential power which sways the judgment; a preconceived opinion; a sort of emotion constituting untrustworthy partially; bent, inclination, prepossession, propension, or tendency, which sways the mind toward one opinion rather than another; propensity toward an object, not leaving the mind indifferent. 'Bias' has been held synonymous with 'partiality', and strictly to be distinguished from 'prejudice'. Under particular circumstances, the word has been described as a condition of mind and has been held to refer not to views entertained regarding a particular subject-matter, but to the mental attitude or disposition toward a particular person and to cover all varieties of personal hostility or prejudice against him,"
(Emphasis provided)
The same has been further elaborated in a case titled All Pakistan Newspapers Society and others v. Federation of Pakistan and others [PLD 2012 SC 1] in the following manner:-- "55. It is also contended by the learned counsel with vehemence that objection was raised on the procedure being followed during the proceedings of the Board as there was a perception of bias.
He has relied upon certain documents, i,e, letter dated 24th April, 2000 addressed to the Director General (Internal Publicity), Ministry of Information (relevant excerpt reproduced hereinabove) letter dated 17th December, 2000 addressed to the Chairman of the Board on the manner of proceedings of the Board, letters dated 20th August, 2001 and 25th, October, 2001 addressed to the then Minister of Labour for repeal of the NECOSA, etc., letters dated 22nd December, 2001 and 16th May, 2002 addressed to the Secretary Information, and letter dated 15th August, 2002 addressed to the Secretary, Ministry of Labour, but in our considered opinion attempts have been made to persuade the Court at a belated stage that the Award should be set aside on the perception of bias. Firstly, this ground was never pleaded, and secondly, provision of interim relief, holding inquiry in absence of the petitioners, instead of reflecting upon the conduct of the Board goes against, the petitioners because they were not cooperating with the Board, inasmuch as they had twice boycotted the proceedings. As held in Asif Ali Zardari v. The State (PLD 2001 SC 568), bias is said to be of three different kinds:--
(a) A Judge may have a bias in the subject-matter, which means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest. A 'legal interest' means that the Judge is 'in such a position that a bias must be assumed'.
(b)Pecuniary interest in the cause, however, slight, will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges the decision is vitiated.
(c)A Judge may have a personal bias towards a party owing to relationship and the like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is -- 'Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?' The test is whether there is a 'real likelihood of prejudice', but it does not require certainty.' 'Real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or 'capricious persons'."
43. The application filed by one of the appellants for non-hearing of the writ petition (that Mr. Justice Ghulam Mustafa Mughal should not hear the writ petition) was disposed of by the learned Chief Justice on 21st April, 2010 whereby the learned Chief Justice of the High Court observed as under: "....... This application is not tenable because at present there is no other Judge in the High Court and appointment of ad hoc Judge for a single case is not desirable. Moreover, being under oath, I do not feel embarrassed to hear this case especially so when the Supreme Court vide its order dated 16.4.2010 has directed the Chief Justice High Court to decide the case within a week. Keeping in view the stated position, apprehension of the respondent/Judge is baseless and I can decide the controversy in view of the rule laid down in PLJ 1998 SC (AJK) 327."
There was no other Judge available in the High Court, in such like situation, when the Supreme Court had issued a direction to the High Court for decision of the writ petition within a specified time, the learned Chief Justice of the High Court was justified in hearing and disposing of the application. We may refer to "The Law of Bias and Mala Fides (Judicial and Administrative")" by A.S. Misra referred to by Mr. S.M. Zafar, counsel for the appellants, wherein at page 159 it is mentioned as under:-- "In the case of the Public Service Commission, the doctrine of necessity is applicable which is an exception to the rule of memo judex in causa sua. In J, Mohapatra & Co. v. State of Orissa, the Court explained this exception thus: An adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person competent or authorized to adjudicate or if quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means for deciding the mater and the machinery of justice or administration would break down.
While a statue may expressly abrogate the principles of natural justice, these principles may also have to yield to the 'demands of necessity' where the jurisdiction is exclusive and there is no legal provision for calling a substitute'. A participation of the Judges on the administrative side does not disqualify them from hearing the matter on the judicial side."
Again at page 162 it is provided as under:-- "It sounds incongruous that an Assistant Sessions Judge should be called to pronounce upon the weight of the evidence of the Chief Justice of and of a Judge of the Supreme Court, granting that the Assistant Sessions Judge was in no way to be swayed by the status of these high dignitaries, this could not be helped since under the criminal law the Assistant one Judge in this case had the exclusive jurisdiction to try the case. The of necessity thus came into play."
In view of the case law referred to above, the necessity in the instant case demanded that the Chief Justice of the High Court should have heard and decided the case.
44. We may refer to a judgment of this Court titled Azad Government and others vs. Genuine Rights Commission and others [PLJ 1998 SC (AJ&K) 327] where during the hearing of appeal an objection was raised against one of the members of the Bench that one of the appellants was personal friend of the Honourable member of the Bench and worked as his Secretary, therefore, the element of bias cannot be ignored and the learned member should not hear the case. This Court repelled the objection while observing that the Judge is under oath and cannot be debarred from hearing a case merely on the ground that a person to the litigation had worked as his subordinate. It was observed that if the objection raised that one of the appellants served as Secretary to a Judge, i,e,, a member of the Bench, is accepted, it would mean that no Judge will be able to hear a case relating to his subordinates. It was observed in paragraph 14 as under:-- "14. We have given due consideration to the aforesaid objections. It may be pointed out that if the contentions of the applicants-respondents about Mr. Iftikhar Hussain Butt regarding his being Secretary to Mr. Muhammad Yunus Surakhvi, J., is upheld, it would imply that a Judge would be disqualified to hear the matters pertaining to his subordinates. Such a concept is foreign to our judicial system. The averment regarding the personal friendship of Mr. Iftikhar Hussain Butt, with the said member of the Bench has not only been refuted by filing a counter affidavit by Mr. Iftikhar Hussain Butt but is also emphatically denied by the concert member of the Bench. Thus, it cannot be said that there were any special relations or friendship between the said appellant and the concerned member of the Bench. For elucidating the matter, the relevant provision contained in the Code of Conduct for Judges which has been framed by the Supreme Judicial Council under sub-section (7) of Section 42-E of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is reproduced below:-- "Article IV. A Judge must declined resolutely to act in a case involving his own. interest, including those of persons whom he regards and treats as near relatives are close friends.
It is evident from the above provision that a Judge is to refrain from acting a Judge involving his own interest or the interests of those whom he regards and treats as near relatives or close friends.
It implies that it is for the Judge concerned to decide as to whether he regards and treats a person as a near relative or close friend or not. Thus, when the averment of close friendship of Mr. Iftikhar Hussain Butt is not only denied in the counter affidavit but is also refuted by the concerned member of the Bench, the averment made by the applicants does not furnish a valid ground for the reConstitution of the Bench. Therefore, the same is hereby repelled as being frivolous and without any substance."
Again in Paragraph 16 it was observed as under: "16. So far as the appointment of an ad hoc Judge is concerned, out of present five Judges of the High Court, four have passed the impugned judgment. Thus, there remains only one Judge who is also the Chief Justice of the High Court and the Shariat Court; only he can be appointed as ad hoc Judge of this Court. However, vide his order dated 12.1.1998, which he passed as Chief Justice of the High Court, he has declined to associate himself with the Bench on the ground that as he was also the Chief Justice of the Shariat Court, it was not proper for him to hear the writ petitions out of which the present appeal has arisen. Assuming for the sake of argument that he is willing to be appointed as an ad hoc Judge of this Court/for hearing and disposal of the present appeal, the problem still remains unresolved as the appeal could be heard by a Bench consisting of at least two Judges. As the two Judges of the High Court for appointing them as ad hoc Judges are not available, the Constitution of another Bench is not possible. Therefore, in any case, the present Bench must hear and dispose of the appeal even on the basis of the doctrine of necessity as enunciated in some of the authorities, referred to above."
45.After taking into consideration the arguments advanced by the learned counsel and the dictums laid down in the supra cases, we are not convinced with the argument advanced by the learned counsel for the appellants that the doctrine of bias is applicable in this case, therefore, we repel it being devoid of any force.
46.The procedure for the appointment of the Judges of the High Court prescribed under Section 43(2-A) of the Act, 1974 which was required to be followed in letter and spirit has not been followed and the appointment has been made without valid consultation. The appeal has no force and merits dismissal.
47.We have also considered the argument in appeal titled Ch. Shaukat Aziz and others v.
Muhammad Yunus Tahir and others that the appellants must pay back the benefits which they have received as Judges of the High Court. The appellants were appointed through a notification.
The de fecto doctrine is applicable in their case. The contravention of the Constitutional provisions invalidates the appointments but the acts done and functions performed by a person who held that office under the authority of law continue to be valid and effective. When the order is annuled, the benefits derived by the appellants on the basis of de facto doctrine cannot be ordered to be paid back as they have validly done the acts and performed the functions under the colour of lawful authority. The proposition came under consideration of this Court in a case titled as Azad Government of the State of Jammu and Kashmir v. Kh. Noor-ul-Amin and others [1991 PSC 967], It has been held as under: "14. Before parting with the case we may point out that "de facto doctrine" which has been given due recognition by the Courts of law is not only applicable to a Judge but it also applies to certain officers. Under that doctrine the contention of a constitutional provision may invalidate an appointment but the acts done and functions performed by a person who held that office acting under the colour of lawful authority continue to be valid and effective. This doctrine has recently been applied by this Court in Amjad Hussain and others vs. Ghulam Rasool Mir (Criminal Appeal No, 6 of 1990)."
48. In a recent judgment of the Supreme Court of Pakistan titled Sindh High Court Bar Association through its Secretary and others v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others [PLD 2009 SC 889], it was observed as under:-- "180. The Chief Justice and Judges of the Islamabad High Court shall cease to hold office immediately for the reasons: (1) the amendments introduced in the relevant Articles of the Constitution under which they were appointed have also been annulled; (2) the High Court to which they were appointed has ceased to exist on account of the annulment of the acts/actions of General Pervez Musharraf of 3rd November, 2007 and other instruments including Islamabad High Court (Establishment) Order, 2007 (President's Order No, 7 of 2007 dated 14th December, 2007) by means of this judgment; and (3) they were appointed in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for such purpose under the provisions of Article 193 of the Constitution, as held in the Al-Jehad Trust case. However, if the Chief Justice, or any Judge of that Court, prior to his appointment in the said Court, was a Judge of any other High Court he shall stand repatriated to his respective High Court subject to the age of superannuation. The finding recorded in the preceding part of this judgment regarding the Judges of other High Courts who made oath in violation of the order dated 3rd November, 2007 passed by a seven member Bench of this Court in Wajihuddin Ahmed's case shall apply to a Judge of the Islamabad High Court if he was a Judge of any High Court prior to 3rd November, 2007 and had made such an oath.'
181. However, the judgments and orders passed, proceedings taken in the cases and other acts, whether financial or administrative, passed or done in the ordinary orderly running of the day-to- day business of the Islamabad High Court from 15th December, 2007 till 31st July, 2009, i,e, the date of announcement of this judgment, would not be affected on the principle laid down in Asad Ali's case......"
The acts done by the appellants, Muhammad Yunus Tahir and Raja Rafiullah Sultani in the capacity of Judges of the High Court are valid on the principle of de facto doctrine. The appeal merits dismissal.
49. Before parting with the case, we may refer to the directions issued by the Supreme Court of Pakistan in Al-Jehad Trust's case [PLD 1996 SC 324], which are reproduced as under:-- "7. Our conclusions and directions in nutshell are as under:-- (i)The words 'after consultation' implied inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive."
(ii)That if the President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution.
(iii)That the permanent vacancies occurring in the offices of Chief Justice and Judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.
(iv)That no ad hoc Judge can be appointed in the Supreme Court while permanent vacancies exist.
(v) That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.
(vi)An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of Constitution and, therefore, mandatory Constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in case the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.
(vii) That Additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while they are acting as Additional Judges, acquire legitimate expectancy and they are entitled to be considered for permanent appointment upon the expiry of their period of appointment as Additional Judges and they are entitled to be appointed as such if they are recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan in the absence of strong valid reason/reasons to be recorded by the President/Executive.
(viii) That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203-C of the Constitution without his consent is violative of Article 209, which guarantees the tenure of office. Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the Framers of the Constitution, the same shall prevail and, hence, such an appointment will be void.
(ix) That transfer of a Judge of one High Court to another High Court only be made in the public interest and not as a punishment.
(x) That the requirement of 10 years' practice under Article 193(2)(a) of the Constitution relates to the experience/practice at the Bar and not simpliciter the period of enrolment.
(xi) That the simpliciter political affiliation of a candidate for judgeship of the superior Courts may not be a disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan.
(xii) That it is not desirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court in view of clear adverse observation of this Court in the case of Abrar Hassan v. Government of Pakistan and others PLD 1976 SC 315 at 342.
(xiii) That since consultation for the appointment/ confirmation of a Judged of a Superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid."
The word 'consultation' is used in Sections 42(4) and 43(2-A) of the Act, 1974, in the same sense as is used in Articles 177 and 193 of the Constitution of 1973. The principle laid down and directions issued in Al-Jehad Trust's case [PLD 1996 SC 324] are fully applicable in case of the appointments of Judges and Chief Justices of the Supreme Court and High Court of Azad Jammu and Kashmir.
As we have already observed that under the scheme of the Azad Jammu and Kashmir Interim Constitution Act, 1974, a vacancy for the office of Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court has to be filled in immediately when it occurs, but it is sorry state of affairs that in past the Chief Justices of Azad Jammu and Kashmir and the Chief Justices of High Court remained as Acting Chief Justices for years and the concerned authorities failed to perform its Constitutional duty. We direct that in future all the appointments of Judges and Chief Justices in the Supreme Court and the High Court shall be made in the light of the dictum laid down in Al- Jehad Trust's case.
50. The direction issued by the Supreme Court of Pakistan in Al-Jehad Trust's case [PLD 1996 SC 324] in Paragraph 7(iii); that permanent vacancies occurring in the offices of the Chief Justice and Judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis, is also applicable in case of appointment of Chief Justices and Judges in the superior Judiciary of Azad Jammu and Kashmir and we accordingly direct.
The result of above discussion is that finding no force in both the Z appeals, the same are dismissed with no order as to costs.