MUHAMMAD SAJID MEHMOOD SETHI, J.:- Through the instant petition, the petitioner has prayed for initiation of contempt proceedings against the respondents for violating the order dated 27.01.2025, passed by this Court, whereby operation of the impugned order dated 24.12.2024 & notification dated 31.12.2024, withdrawing petitioner's appointment order, was suspended.
2. A substantial compliance of this Court's order has been made in view of compliance reports dated 04.03.2025 & 21.04.2025, therefore, this petition is liable to be disposed of accordingly.
However, learned counsel for the parties submit that during the pendency of this contempt petition, certain connected cases, pending adjudication before this Court, have been transferred to some other learned Bench upon submission of a power of attorney by an Advocate, whose name was placed in the "not before list" of this Court, which was not permissible under the law. They argue that neither power of attorney of such counsel could be filed in a pending case nor the same could be entertained by the office, rather the matter ought to have been placed before the Hon'ble Chief Justice in terms of Rule 2 of Part-A of Chapter 6 of the Lahore High Court Rules, Volume V for obtaining permission to appear before the same Judge. They maintain that such a lawyer cannot be made to look like a knight in shining armor for the litigants avoiding to face consequences of alleged defiance of the Court's order as such an act would lead to furtherance, continuation and protection of the contemptuous conduct of a contemnor. In support, they have relied upon Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 Supreme Court 689), Independent Media Corporation v. Federation of Pakistan and others (PLD 2014 Supreme Court 650), Human Rights Case No.14959-K of 2018: In the matter: Human Rights Case No.14959 of 2018, decided on 1st January, 2019 (In the matter regarding disposal of infectious wastes in the Province of Khyber Pakhtunkhwa) (PLD 2019 Supreme Court 183), cases of Independent Media Corporation & Human Rights Case No.14959-K of 2018 (In the matter regarding disposal of infectious wastes in the Province of Khyber Pakhtunkhwa) supra and Abid Shahid Zuberi, Advocate Supreme Court of Pakistan and 3 others v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others (2023 SCMR 2028) and Kanwar Naveed Jameel and 5 others v. Province of Sindh through Chief Secretary and another (PLD 2022 Sindh 499).
3. Pursuant to this Court's direction, the Office made a report to the effect that no formal policy had yet been devised in this regard and as per prevailing policy, when a power of attorney is filed by a counsel blocked to appear before a particular learned Bench, the only available option is to place the matter before the Hon'ble Chief Justice for decision on entrustment of the case to another learned Bench. In response to the office report, learned counsel for the parties submit that such practice needs to be seriously reviewed.
4. In the legal framework of Pakistan, the question of whether a Judge should hear a case is ultimately a matter of judicial conscience[1]. While no rigid rule mandates automatic recusal, the responsibility lies with the Judge to assess, in good faith, whether his continued presence on the Bench would preserve public confidence in the integrity and impartiality of the judicial process. The decision to proceed or to withdraw is not merely a procedural formality but a reflection of the Judge's commitment to justice, guided by ethical introspection and an awareness of the perception of fairness. Judicial independence, therefore, is exercised not only in deciding cases, but also knowing when it is fair to decide at all.
5. It is notable that once a matter is fixed before an Hon'ble Judge, it should remain on that Judge's roster unless and until he chooses to recuse himself from the case. In this context, the Hon'ble Supreme Court, in Human Rights Case No. 14959-K of 2018 (regarding the disposal of infectious waste in the Province of Khyber Pakhtunkhwa), held that once a Bench has been constituted, the cause list issued, and the Bench has convened for hearing, the matter of Bench composition ceases to fall within the administrative domain of the Hon'ble Chief Justice. At that stage, the issue transitions into the judicial domain and becomes a matter within the exclusive prerogative of the Bench itself.
6. First of all, it is essential to understand the concept of recusal and examine its relevance to the facts of the present case. The Recusal has been defined in Black's Law Dictionary, (Seventh Edition) in column IInd at page 1281 as:- "Removal of oneself as judge or policy-maker in a particular manner, esp. because of a conflict of interest".
While "recusation" has been given the meaning of:- "1. Civil Law. An objection, exception, or appeal; esp., an objection alleging a judge's prejudice or conflict of interest.
2. Recusal"
7. It is important to clarify that the concept of recusal does not stem from any notion of ineligibility or incompetence of the Judge to administer justice. In other words, the Judge remains fully competent, and there is no challenge to the validity or constitutionality of his appointment. Rather, recusal is sought solely to address circumstances where a conflict of interest or perceived bias may arise, potentially undermining the impartial and fair dispensation of justice. Reliance is placed upon Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 284). In another judgment reported as Jawwad S. Khawaja and others v.
Federation of Pakistan and others (2023 SCMR 1732), involving somewhat similar proposition, the Hon'ble Apex Court has observed as under:- "Judges should not readily accede to the request for their recusal from hearing a case and decide the matter of their recusal after properly weighing the ground agitated for making such request.
Where it is apparent that the perception of impartiality is being created for some ulterior motive without any sound basis, the judge must not yield to such strategy and abdicate performance of his duty. But if such a request is based on some reasonable ground which may genuinely raise doubt in the mind of a common person about the impartiality of the judge, the safest course for the judge is to accept such request in the larger interest of upholding public trust in the integrity and impartiality of the Court. In the present case, as one of the petitioners is admittedly my relative, a common person may not understand the difference between a petition filed in the public interest and a petition filed for personal interest. I, therefore, in the present case, find it preferable to accept the request and recuse myself from hearing the case. In order to safeguard the public trust in the integrity and impartiality of the Court, I recuse myself from hearing these petitions."
8. If, in any circumstance, a Judge becomes aware of a fact or situation that could reasonably give rise to a real risk of bias, it is generally prudent to disclose such information to the parties prior to the commencement of the hearing. Upon such disclosure, if an objection is raised, the Judge must approach it with a balanced and principled view: it would be equally improper to yield to a frivolous or unfounded objection as it would be to dismiss an objection that is substantial and well- grounded. However, where a reasonable and genuine doubt exists regarding the Judge's impartiality, such doubt must be resolved in favour of recusal in order to uphold public confidence in the judicial process. Conversely, where full and proper disclosure has been made and no objection is raised at the relevant time, the concerned party cannot subsequently claim that the disclosed matter gave rise to a real likelihood of bias. Reliance in this regard may be placed on State of Punjab v. Davinder Pal Singh Bhullar & Others (AIR 2012 SC 364). Furthermore, if a Judge becomes aware that a personal bias or an improper consideration has influenced, or is likely to influence, the adjudicatory process to such an extent that it threatens judicial impartiality, recusal may become necessary. Reference in this context is made to the landmark decision in Caperton v.
A.T. Massey Coal Co., 556 U.S. 868 (2009), where the U.S. Supreme Court underscored the constitutional imperative of fairness in the judicial decision-making process.
9. In the instant case, the pivotal question before this Court is whether, if a power of attorney is filed by an Advocate in a pending case before this Court, and the name of such Advocate has been placed on the "not before list" of the Court, what would be the proper procedure, and who is competent to decide whether such Advocate is permitted to appear in the case. Before proceeding to examine the proposition, I have had the opportunity to peruse Rule 2 of Part-A, Chapter 6 of the Lahore High Court Rules and Orders, Volume V, which reads as under:- "An Advocate shall not appear before a Judge with whom he has any tie or prospective tie of relationship except with the permission of the Chief Justice."
The above Rule is a professional conduct provision intended to ensure impartiality, fairness, and the appearance of justice in judicial proceedings. It prohibits an Advocate from arguing, filing, or otherwise participating in any proceedings before a Judge with whom he has an existing or prospective relationship, except with the prior permission of the Hon'ble Chief Justice. This implies that, upon disclosure of such relationship, the Advocate's appearance may be permitted if the Hon'ble Chief Justice grants express approval.
10. Taking guidance from the above Rule and applying it to the present scenario, the proper course would be that, once a power of attorney is filed in a case pending before this Court by an Advocate whose name appears on the "not before list" of this Court, the matter shall first be placed before the Hon'ble Chief Justice for permission to receive such power of attorney. Upon grant of such permission, the case shall then be placed before the learned Bench seized of the matter, which, in the exercise of its judicial discretion, may determine whether to disclose the circumstances to the parties or to recuse itself, as may be appropriate, in order to uphold the institutional integrity of the Court. This approach reinforces the principle of judicial independence and ensures that sensitive determinations of this nature remain within the judicial domain, rather than being resolved through administrative means. In this view of the matter, the current practice of the Office of this Court-- whereby, upon the filing of a power of attorney by an Advocate whose name is on the "not before list", the case is reallocated to another learned Bench--is to be discontinued forthwith, as it is not supported by any formal policy, rule, or recognized legal principle and the procedure mentioned in the afore-referred rule is to be followed by the Office.
11. Since the connected cases have been transferred with the approval of the Hon'ble Chief Justice, propriety demands that these cases should continue to appear on the cause list of the learned Bench to which they have been assigned. This may be treated as a one-time dispensation. In future, however, the Office shall strictly adhere to Rule 2 of Part-A of Chapter 6 of the Lahore High Court Rules and Orders, Volume V, reproduced supra, particularly in instances where a power of attorney is received from an Advocate whose name is included in the Court's "not before list". The respondents have already made substantial compliance of this Court's order, no further proceedings are required in this contempt petition.
12. In view of the above, instant petition is disposed of accordingly.
[1]Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M. N. A., Former President of Defunct National Awami Party (PLD 1976 Supreme Court 57), Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 284), Independent Media Corporation v. Federation of Pakistan and others (PLD 2014 Supreme Court 650), Abid Shahid Zuberi, Advocate Supreme Court of Pakistan and 3 others v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others (2023 SCMR 2028) and Kanwar Naveed Jameel and 5 others v. Province of Sindh through Chief Secretary and another (PLD 2022 Sindh 499).