Kh. Muhammad Nasim, J.--All the titled appeals, by leave of the Court, are interlinked, as common legal and factual propositions are involved, hence, the same were heard together and are being decided through this proposed consolidated judgment.
2. In brief, the facts of the case are that vide notification dated 07.01.2022, the private respondents, herein, were appointed as the Judges in the High Court of Azad Jammu and Kashmir. Their appointments were challenged by the appellant, herein, i.e. Mir Altaf Hussain and Respondent No. 1, herein, i.e. Sardar Javaid Sharif by filing two separate writ petitions. The learned Chief Justice of the High Court through the impugned orders dated 18.04.2022 and 16.05.2022, adjourned sine die the hearing of both the writ petitions till the availability of any other Judge on the ground that he as a Chief Justice was one of the consultees and no other Judge is available in the High Court.
3. Mr. Fayyaz Ahmed Janjua, the learned Advocate representing the appellant in Appeal No. 91/2022, contended that the appointment of the private respondents was challenged before the High Court by filing two writ petitions. The learned Chief Justice of High Court adjourned sine die the hearing of writ petitions till availability of any other judge. The learned Advocate stated that the appellant, herein, in Civil Appeal No. 91/2022, who challenged the appointment of the private respondents, being conscious of legal position in the matter, had no objection if the case was heard and decided by the Hon'ble Chief Justice. This position was brought into the notice of Hon'ble Chief Justice of the High Court but the same has not been considered at all. Furthermore, the Judges are under oath to administer justice according to the Constitution and law enforced in Azad Jammu and Kashmir, without fear or favour, affection or ill-will. In this state of affairs, keeping in view the importance of the matter while accepting the appeal, the impugned order of the learned High Court may be set aside and direction be issued for hearing and disposal of the writ petitions.
4. Syed Zulqarnain Raza Naqvi, Advocate, appeared in person and adopted the arguments advanced by the learned counsel representing the appellant, Mir Altaf Hussain, and prayed for acceptance of appeals filed by him.
5. Mr. Bashir Ahmed Mughal, the learned Advocate, representing the Azad Jammu and Kashmir Council also adopted the arguments advanced by Mr. Fayyaz Ahmed Janjua, Advocate, and submitted that the learned Chief Justice is under oath, therefore, there is no legal bar on him to hear the writ petitions.
6. We have heard the learned counsel for the parties and gone through the record. The appointments of the private respondents as the Judges in the High Court, were challenged by filing two writ petitions. Through the impugned orders the learned Chief Justice of the High Court adjourned the proceedings of both the writ petitions sine die till availability of any other Judge on the ground that he as a Chief Justice was one of the consultees in the process of appointment, I therefore, it would not be proper to hear the writ petitions. The factual position has been admitted by the learned Advocates while showing full confidence on the Hon'ble Chief Justice for hearing the appeals as a matter of urgent nature.
7. It may be stated here that where no other bench is available then the Judge, even having conflict of interest, has no choice of rescuing himself to be, the part of the bench. In the case reported as M. Tabassum Aftab Alvi vs. Raja Waseem Younas & others [2020 SCR 1] the appointment of sitting Chief Justice of the High Court was challenged through a writ petition. At that time, in the High Court eight Judges, excluding the Chief Justice, were functioning. Out of those eight Judges, the appointment of five Judges were also challenged on the main ground that only two of them were recommended by the then Chief Justice. The matter of all those five Judges was sub-judice before this Court, therefore, in view of the raised controversy none of them was suitable for hearing of the case of appointment of Chief Justice, whereas, out of the other three Judges there was divergence of opinion. The only remaining Judge was senior most Judge of the High Court. In this background, while taking into consideration all the aspects of the matter this Court passed the following order: ".... The perusal of the record reveals that the learned Chief Justice of the High Court is respondent in this writ petition and one of the member of bench has already, declared his appointment illegal.
In this state of affairs, no one can be a judge of his own cause. As in this case, not only the dignity of the judiciary but also the office of the Chief Justice of the High Court is involved, therefore, the matter requires expeditious disposal, hence, for doing complete justice, while exercising the powers vested in this Court, it is directed that the case shall be placed before the next senior most judge of the High Court for further proceedings in the light of sub-Article (1-A) of Article 43 of the Azad Jammu & Kashmir Interim Constitution, 1974. The learned Judge shall finally dispose of the writ petition within two weeks' time from today."
In this regard, there are several precedents from the Pakistan Jurisdiction also. While hearing review petition of Mr. Muhammad Akram Sheikh, Advocate, arising out of the judgment of Supreme Court of Pakistan dated 18.03.1989 (Muhammad Safiullah's case) in which Federal Government objected on participation of three Hon'ble Judges sitting in the bench were directly beneficiary/affected, Mr. Justice Shafi-ur-Rehman writing for majority while quoting from Halsbury Laws of England (Fourth Edition), Para. 67 (reproduced in Para 65 of PLD 1998 SC 161) observed as follows: "(ii) "???????????? A judge who would otherwise be disqualified may act in a case of necessity where no other judge has jurisdiction. That the necessity rule is a part of common law is undoubted." (Natural Justice by Marshall 1959 Edition, page 38)
(iii)?????????" The rule of necessity must yields to the demand of necessity, and a Judge or an Officer exercising judicial functions may act in a proceeding wherein he is disqualified even by interest, relationship or the like, if his jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would destroy the only Tribunal in which relief could be had and thus, prevent a termination of the proceeding' (vise American Jurisprudence, Vol. 30 page 770) (quoted in the President v Mr. Justice Shaukat Ali PLD 1971 SC 585 at page, 606).
(iv)???????" "An adjudicator who is subject to disqualification at common law may be required to sit if there is no other competent Tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice, so, if proceedings were brought against all the superior Judges, they would have to sit as Judges in their own cause. Similarly, if, a Judge may be obliged to hear a case in which he has a pecuniary interest. De-Smith's Judicial Review of Administrative Action (Fourth Edition). 1980 Vol. p. 276"
In the case of Asad Ali v Federation of Pakistan [PLD 1998 SC 161) the question of senior most judge to become Chief Justice of Pakistan involved conflict of interest of some judges of Hon'ble Supreme Court of Pakistan and against one Hon'ble judge even a reference was filed for misconduct to President of Pakistan. The following conclusion was drawn: "66. From the preceding discussion, it clearly emerges that a disqualification to hear a case would arise only where a Judge hearing the case is shown to have a personal interest or pecuniary interest, however, small it may be, in the subject matter of the case before him. However, if the Judge so disqualified has the exclusive jurisdiction in the matter and there is no other competent Tribunal or Court available to hear the case, or the quorum for hearing of the case cannot be formed without the presence of the judge so disqualified, therein such circumstances, in spite of the above disqualifications, he can sit and hear the case on the doctrine of necessity to prevent the failure of justice and to save the only Tribunal available for relief from being rendered ineffective. In all other cases where general bias or disqualification is' alleged against a Judge of the superior Court, it is left to him alone to decide whether he would like to hear a particular case before him or not.
In some other cases in the history of Pakistan, the judges under this rule of necessity and having no other forum, had to be a part of the bench. One such case is of Zafar Ali Shah. After taking oaths under Oath of Office (Judges) Order, (1 of 2000) the judges who took oaths under the said Order and were direct beneficiary of the judgment, decided in favor of the Order in the case titled Zafar Ali Shah v. Parvez Musharraf [2000 PLD SC 869]. Yet another dictum of judges sitting and deciding a case in which they had conflict of interest, was case the case reported as Sindh High Court Bar Association & another vs. Federation of Pakistan and others [PLD 2009 SC 789]. In this case, all the fourteen judges who delivered judgment, were either beneficiary or affected. In this case, the issues, inter alia, were the legality of Provisional Constitutional Order (PCO) of 3rd November 2007, the appointments of PCO judges in Hon'ble Supreme Court of Pakistan and High Courts of Pakistan as well as fresh oath to some judges appointed thereafter. All the fourteen judges delivering the judgment had some interest as some refused to take oath, some took fresh oaths, and "some were elevated/appointed to Hon'ble Supreme Court of Pakistan during the period PCO was in force, but all these judges had to be part of the bench delivering the judgment.
8. In our opinion, the case in hand is at better footing for the reason that the learned Chief Justice of the High Court has no personal benefit or conflict of interest, even otherwise, he is under oath and supposed to decide the cases according to law and the Constitution, therefore, we have no hesitation to hold that the Hon'ble Chief Justice is not debarred to hear the cases.
For the foregoing reasons, while accepting the appeals, the impugned orders dated 18.04.2022 and 16.05.2022 passed by the High Court are set aside with a direction to the learned Chief Justice of