PLJ 2010 AJ&K 40
Present: Ghulam Mustafa Mughal, J.
Sardar KARAM DAD KHAN, ADVOCATE, SUPREME
COURT AZAD JAMMU & KASHMIR MUZAFFARABAD and 5 others--Petitioners
versus
CHAIRMAN AJ&K COUNCIL/PRIME MINISTER
OF PAKISTAN, through Secretary AJ&K Council Secretariat,
and 9 others--Respondents
W.P. No. 362 of 2010, decided on
7.5.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 10--Power to order further
scrutiory--Jurisdiction--Objection of--No Court shall proceed with trial of any
suit in which the matter in issue is also directly and substantially in issue
in a previously instituted suit between the same parties, or between parties
under whom they or any of them claimed litigation under same title where such
suit is pending in the same or any other Court in Pakistan having jurisdiction
to grant relief claimed, or in any Court beyond the limits of Pakistan
established or continued by Central Government and having like jurisdiction or
before Supreme Court--Objection has no substance, hence, is hereby repelled. [P. 48] A
Jurisdiction of Supreme Court--
----Pendency of the petition in original
jurisdiction--Supreme Court is not debarred from hearing and deciding the
controversy brought before it whereby action or inaction of the Constitutional
functionaries working within the territorial jurisdiction of Supreme Court is
challenged. [Pp. 48 & 49] B
AJ&K Interim Constitution Act, 1974--
----S. 44--Constitutional
petition--Appointment of private respondent as judge--Notification by AJ&K
Government--Appointment and issuance of notification can be scrutinized by the
Courts--Jurisdiction--In absence of prohibitory order--Supreme Court cannot
stay its hands from enforcing fundamental rights of the petitioners, who have
been struggling 2006--Both the Courts have concurrent jurisdiction on the
ground that cause of action arose in their jurisdiction--Either of the Court
can stay its hands only on rule of propriety not otherwise. [P. 49] C & D
AJ&K Interim Constitution Act, 1974--
----S. 42(e)--Constitution of
AJ&K Interim Constitution Act, 1974--
----S. 42(g)--Proceedings of Supreme
Judicial Council--Challenge to--Revisional jurisdiction--S.J.C. is highest
Constitutional body consisting upon the Judges--Findgs of such body regarding
guilty of misconduct has been declared final by Constitution itself and
executive is not vested with any authority to sit over it as appellate
authority to exercise review or revisional jurisdiction because the report and
proceedings of Supreme Judicial Council are immune from challenge u/S. 42-G of
the Act, 1974. [P. 55] F
AJ&K Interim Constitution Act, 1974--
----S. 36(2)--Reasonable time--To issue
on executive order on basis of the report without unreasonable delay--No
timeframe is provided in Constitution for issuance of notification--Advice by
Chairman and President cannot be procrastinated and has to be complied within reasonable
time--Validity--Bill passed by legislative assembly or joint sitting has to be
consented by President within seven days u/S. 36(2) of Act and if it is not
done within that period, it shall be deemed to have been assented as the will
of Parliament is final. [P.
55] G
Supremacy of Parliament and
----Judgments of Supreme Court or any
other tribunal--Principle of finality of judgments--Where the Constitution or
law means to leave a room for executive, notwithstanding the finality of a
judgment--Limited power of the President under Constitution of India, Pakistan
and AJK relating to clemency/remission of the sentence, where inspite of
judgment of a Court having become final, President can alter it for the purpose
of remission of sentence--Principle of finality of judgments even then remains
undisturbed. [P. 55] H
AJ&K Interim Constitution Act, 1974--
----S. 42-E(6-b)--Constitution of
Report of Supreme Judicial Council--
----Not challengeable--Affect of report
cannot be nullified by non-issuance of the formal order which is a mere
formality. [P. 56] J
So-Called Order--
----Writ can be issued in appropriate
cases for implementation of the same--After acceptance of review petition by
competent authority, it is duty of the authority to implement such order
irrespective of issuance of so-called formal order. [P. 56] K
Misconduct of Private Respondent--
----Recommendation of Supreme Judicial
Council--Proved of--Private respondent has ceased to be the Judge Chief Justice
of Supreme Court of AJK and the office of the Chief Justice is
vacant--Proceeding in instant petition will not serve any purpose. [P. 57] L
PLD 1998 SC 161; PLD 2008 SC 735 and 2002
SCR 62 ref.
Sardar K. D. Khan, Advocate, in person,
and for the remaining Petitioners.
Raja Muhammad Hanif Khan, Advocate, for
AJK Government.
Raja Tariq Mehmood, Assistant
Draftsman/Deputy Secretary AJK Council Secretariat, for AJK Council.
Sardar Mushtaq Hussain Khan, Kh. Muhammad
Nasim and Kh. Maqbool Waar, Advocates, for the Respondent No.9.
Date of hearing: 7.5.2010.
Judgment
The petitioners, herein, are practicing
Advocates of the bar, have filed this petition under Section 44 of the Azad
Jammu and Kashmir Interim Constitution Act, 1974, and have claimed following
relief:-
"It is, therefore, very humbly
prayed that in light of the pleadings appropriate writ may be issued in
following manners.
a. That
the notification No. LD/AD 2/1/2002 dated 21.10.2006 whereby respondent No. 9
has been appointed as Chief Justice of Azad Jammu and
b. That
Hon'ble respondent No. 9 may kindly be asked that under what authority of law
he is holding the office of Chief Justice of Supreme Court of Azad Jammu and
Kashmir, against the Constitutional provisions, Constitutional conventions.
Moreover the respondents No. 1 to 8 may kindly be asked that under what
authority of law they have issued notification LD/AD 2/1/2002 dated 21.10.2006.
c. That
respondents No. 1 to 5 may kindly be directed to send advice for appointment of
senior most Judge of Supreme Court as Chief Justice of Azad Jammu and Kashmir
and respondents No. 5 to 8 may kindly be directed to issue the appointment
order of most senior Judge of Supreme court as Chief Justice of Azad Jammu and
Kashmir according to the Constitutional conventions and dictum of Supreme Court
of Pakistan as laid down in the cases titled "Asid Ali v. Federation of
Pakistan [PLD 1998 SC 161], Raees-ul-Mujahideen Habib Wahab-ul-Kheri v.
Federation of Pakistan [PLJ 1996 SC 882]
d. Any
other relief which is admissible under law may kindly be granted."
The brief facts forming the background of
the instant petition, as claimed, are that respondent No. 1 has to administer
the State territory under the auspicious of United Nations Resolutions, and for
that purpose Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter
to be referred as Act,1974) has been enacted whereby parliamentary system of
the Government, trichotomy of powers has been introduced. According to the
scheme of the Constitution, the executive, parliament and judiciary have to act
within their allotted spheres. It is claimed that under the modern democratic
system, an independent judiciary is necessary for protection of the rights of
the citizens. In Azad Jammu and
Record of the case was earlier summoned
by the Supreme Court and in view of order of the then Acting Chief Justice of
this Court on Mar 28, 2007, the same was sent to the apex Court. However, this
petition remained pending there till Apr 16, 2010. On 16.4.2010, the file has
been received back from the apex Court upon which notices were issued to the
respondents. Private respondent was also served who sought some time and the
case was adjourned to 20.4.2010. On this date some documents were placed before
the Court by the petitioners and the next date was fixed as 21.4.2010. On
21.4.2010, Kh. Muhammad Nasim, Advocate, requested for filing power of attorney
on behalf of respondent No. 9 and made a request for an amendment which was
allowed. The next date was fixed as 27.4.2010. On 27.4.2010, Kh. Muhammad Nasim
and Kh. Maqbool Waar, Advocates, tendered their power of attorney on behalf of
private respondent and seek further time. Their request was again allowed and
the case was fixed for 30.4.2010. On this date again Kh. Maqbool Waar,
Advocate, sought an adjournment which was allowed in the interest of justice
and the case was fixed for 3.5.2010. On 3.5.2010 an application was filed by
Kh. Muhammad Nasim, Advocate, that the petitioners, at their own, have made
some deletion/amendment in the petition, therefore, they may be allowed further
time after clarifying that on which petition they have to file parawise
comments. This application was rejected because sufficient time has already
been allowed to them and objection, if any, could be taken in the comments. So
far as question of amendment is concerned, this Court directed the petitioners
to delete some paras of the petition, which in estimation of the Court, were
against the rule of pleadings and were contemptuous. On this verbal order, the
petitioners have filed amended petition after deleting scandalous material.
The Azad Jammu and Kashmir Council
(hereinafter to be referred as Council) has filed comments through its
representative wherein it is pleaded that a petition on similar grounds is
subjudice before the apex Court of Pakistan, therefore, the matter being
directly and substantially in issue before the apex Court of Pakistan, this
petition merits dismissal. It is also pleaded by them that Supreme Judicial
Council has finalized its proceedings in a reference filed against private
respondent, herein, therefore, this Court lacks the jurisdiction in the case in
hand.
The Azad Government of the State of
Sardar K. D. Khan, Advocate, contended
that appointment of senior most Judge of the Supreme Court as Chief Justice
Azad Jammu and Kashmir is not only in line with the scheme of the Act, 1974
rather is supported by well established Constitutional Convention, acted upon
and accepted by the functionary exercising the powers to appoint Chief Justice
in Pakistan & Azad Jammu and Kashmir from time to time. According to him in
absence of an express provision in the Act, 1974, Constitutional Convention has
the force of Constitution itself and is liable to be implemented in letter and
spirit. He submitted that Section 42(4) of the Act, 1974, clearly postulates
that Chief Justice of Azad Jammu and Kashmir shall be appointed by the
President on the advice of the Council and each of the other Judges of the
Supreme Court of Azad Jammu and Kashmir shall be appointed by the President on
the advice of the Council after consultation with the said Chief Justice. He
also referring to and relying upon Section 42(8) of the Act, 1974 contended
that at any time when office of the Chief Justice is vacant or Chief Justice is
absent or unable to perform the functions of his office due to any other cause,
the President shall appoint the most senior of the other Judges of the Supreme
Court as Chief Justice of Azad Jammu and Kashmir. He also submitted that words
"most senior of the other Judges" used in subsection (8) of Section
42 of the Act, 1974 are suggestive of the fact that even for the purpose of
appointment as Acting Chief Justice, seniority cannot be ignored. He also
submitted that deviation from the principle of seniority has been thrashed out
in Malik Asid Ali's case [PLD 1998 SC 161]. He submitted that neither the
Government nor the President or Council could violate the principle laid down
in the cited case while making the appointment of Chief Justice of Azad Jammu
and
i) Malik
Asid Ali and others v. Federation of Pakistan through Secretary, Law, Justice
and Parliamentary Affairs, Islamabad and others [PLD 1998 SC 161].
ii) Al-Jehad
Trust's case [PLD 1996 SC 324]
He further submitted that a Judge can be
ignored from further elevation only on the ground that he is incapable of
properly performing the duties of his office by reason of physical or mental
incapacity or he has been guilty of misconduct, otherwise, neither a Judge can
be removed from the office nor in light of the scheme of the Act, 1974 can be
superceded. The learned Advocate contended that notification of appointment of
the private respondent, herein, still exists, therefore, relief prayed for can
competently be granted.
Raja Tariq Mehmood, Assistant
Draftsman/Deputy Secretary AJK Council Secretariat, appearing on behalf of
Council has confined himself only to two grounds. Firstly, he submitted that as
the matter is already subjudice before the apex Court of Pakistan on the common
grounds, hence, this Court despite having concurrent jurisdiction should
abstain from entertaining and deciding the controversy agitated in this
petition. Secondly, the Supreme Judicial Council has completed its
recommendations/ report which has been sent to the competent authority for
notification, therefore, further proceedings in this petition would be
academic.
Raja Muhammad Hanif Khan, the learned
counsel representing the AJK Government contended that only lawful advice is
binding on the President as well as Government of AJK. The advice tendered in
the present case, according to him, was violative of the rule of seniority
recognized in Malik Asid Ali's case, supra, hence, the President and the
Government were not bound to implement the same. He further argued that advice
cannot be thrust upon rather has to be sought and for that purpose, process
should have been initiated under the Rules of Business and the viewpoint of the
Government and opinion of the President, should be placed before the Chairman
in juxtaposition for a lawful and proper advice. Only on a duly processed file
and collected material the Chairman can make-up his mind for the purpose of
advice. He submitted that an advice cannot be given in vacuum without
consideration of the material facts. He referred to and relied upon Article 177
of the Constitution of Islamic Republic of Pakistan and made a comparison with
Section 43(2) of the Act, 1974 and prayed for proper orders.
The Advocates who have filed power of
attorney on behalf of the private respondent remained present in the Court but
have abstained from arguing the case except making application mentioned in the
earlier part of the order.
I have heard the learned Advocates
representing the parties and gone through the record of the case with my utmost
care.
Before proceeding further the objections raised
on behalf of the Council by Raja Tariq Mehmood, Assistant Draftsman/ Deputy
Secretary AJK Council, must be attended first. For proper appreciation of the
matter, both the objections are reproduced as under:-
1. That
the writ petition is incompetent as the principle of Res subjudice is
applicable. The validity of the advice of the Chairman, AJ&K Council (Prime
Minister of Pakistan) dated 20.10.2006 for the appointment of Mr. Muhammad Reaz
Akhtar Choudhry as Chief Justice of AJ&K is directly and substantially in
issue before the Supreme Court of Pakistan in Constitutional petitions No. 14
& 31 i.e. (1) Syed Manzoor Hussain Gilani Vs. Govt. of Pakistan and others
(2) Mr. Tabassam Sadiq and others Vs. Govt. of Pakistan) filed under Article
184(3) of the Constitution of Islamic Republic of Pakistan, 1973. Law bars
concurrent jurisdiction for simultaneously entertaining and adjudicating in
respect of the same cause of action, the same subject mater and for the same
relief. Upon direction of the Supreme Court of Pakistan, the AJ&K Council
Secretariat has filed a concise Statement with the submission that the Supreme
Court of Pakistan have jurisdiction in the aforesaid Constitutional petitions.
The Federation of Pakistan has also taken the similar stance before the Supreme
Court of Pakistan. The Supreme Court of Pakistan has summoned and inspected the
record relating to the appointment of Mr. Muhammad Reaz Akhtar Choudhry as
Chief Justice of AJ&K. Resultantly the Writ petition merits no
consideration till the final disposal of the Constitutional petitions No. 14
& 31 (i.e. (1) Syed Manzoor Hussain Gilani Vs. Govt. of Pakistan and
others(2) Mr. Tabassam Sadiq and others Vs. Govt. of Pakistan)
2. That
Section 42-E of the AJ&K Interim Constitution Act, 1974 provides mode of
removal of Judges of Superior Judiciary explicitly and unambiguously.
Reportedly, the Supreme Judicial Council has finalised its proceedings in a
reference filed against Mr. Muhammad Reaz Akhtar Choudhry as Chief Justice of
AJ&K. therefore, the AJ&K High Court lacks jurisdiction in the
matter."
The first objection has been raised by
the Council in its comments on the strength of Section 10 of C.P.C. which
postulates that no Court shall proceed with the trial of any suit in which the
matter in issue is also directly and substantially in issue in a previously
instituted suit between the same parties, or between parties under whom they or
any of them claimed, litigating under the same title, where such suit is
pending in the same or any other Court in [Pakistan] having jurisdiction to
grant relief claimed, or in any Court beyond the limits of [Pakistan]
established or continued by the [central Government] and having like
jurisdiction or before [the Supreme Court]. I am of the view that the first
objection reproduced hereinabove has no substance, hence, is hereby repelled.
Admittedly the petition has been filed on behalf of the petitioners as well as
proforma respondent before the apex Court of Pakistan which is still awaiting
disposal but it is in my judicial notice that functionaries who were directly
responsible and concern with the appointment of Chief Justice of Azad Jammu and
Kashmir have been deleted by the Hon'ble Supreme Court of Pakistan. Now the
petition before the apex Court is pending only to the extent of functionaries
working in
"In the light of the nature of
proposition, we deem it proper to decide the question of jurisdiction of
Islamabad High Court at the first instance. The principle is that question of
jurisdiction which is always a fundamental question must be decided at the
initial stage of proceedings as it is the right of Court to proceed with the
litigation and this right must be determined at the first instance. The power
of Court to adjudicate upon the matter is linked with the territorial
jurisdiction otherwise the judgment is treated to have been rendered illegally,
without lawful authority due to lack of jurisdiction. The Court possesses
jurisdiction which is directly or indirectly, expressly or impliedly conferred
upon it by the law and the constitution but jurisdiction of the court vested
under the constitution cannot be abridged or enlarged through an ordinary
legislation. The jurisdiction conferred on High Court under Article 199 of the
Constitution may be territorial as well as inherent which cannot be construed
in a manner to curtail the concept of jurisdiction only to the territorial
boundaries. This is settled principle that jurisdiction cannot be conferred by
consent or waiver if the Court otherwise lacked jurisdiction to adjudicate and
render judgment in a matter and at the same time it is also settled law that if
the objection relating to the jurisdiction which was required to be taken at
initial stage, was not raised at appropriate stage, there may be waiver or
estoppel to the question of jurisdiction of the Court at a later stage. This
Court in Flying Kraft Paper Mills (Pvt.) Ltd. Charsadda V. Central Board of
Revenue, Islamabad, (1997 SCMR 1874) in which, order was passed by Collector of
Customs an Central Excise Peshawar, was under challenge, overruled the
objection that Rawalpindi Bench of Lahore High Court was not competent to
entertain constitutional petition and exercise the jurisdiction under Article
199 of the Constitution. It was observed that not only the order passed by the
Collector of Customs and Central Excise,
Same view has been reiterated in
Sandalbar Enterprise's case [PLD 1997 SC 334].
The second objection raised on behalf of
the learned representative of the Council has a substance and must prevail. For
proper appreciation of the same it will be useful to reproduce the relevant
provisions regarding constitution of Supreme Judicial Council in the
Constitution of the Islamic Republic of Pakistan and Act, 1974 of the Azad
Jammu and
(A) Constitution
of
"209. Supreme Judicial Council. (1)
There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred
to as the Council.
(2) The Council shall consist of--
(a) the
Chief Justice of
(b) the
two next most senior Judges of the Supreme Court; and
(c) the
two most senior Chief Justices of High Courts.
Explanation.
For the purpose of this clause, the inter se seniority of the Chief Justices of
the High Courts shall be determined with reference to their dates of
appointment as Chief Justice [otherwise than as acting Chief Justice], and in
case the dates of such appointments are the same, with reference to their dates
of appointment as Judges of any of the High Courts.
(3) If at any time the Council is
inquiring into the capacity or conduct of a Judge who is a member of the
Council, or a member of the Council is absent or is unable to act due to
illness or any other cause, then-
(a) if
such member is a Judge of the Supreme Court, the Judge of the Supreme court who
is next in seniority below the Judges referred to in paragraph (b) of clause
(2), and
(b) if
such member is the Chief Justice of a High Court, the Chief Justice of another
High Court who is next in seniority amongst the Chief Justices of remaining
High Courts,
shall act as a member of the Council in
his place.
(4) If, upon any matter inquired into by
the Council, there is a difference of opinion amongst its members, the opinion
of the majority shall prevail, and the report of the Council to the President
shall be expressed in terms of the view of the majority.
(5) If, on information received from the
Council or from any other source, the President is of the opinion that a Judge
of the Supreme Court or of a High Court.
(a) may
be incapable of properly performing the duties of his office by reason of
physical or mental incapacity; or
(b) may
have been guilty of misconduct,
the President shall direct the Council to
inquire into the matter.
(6) If, after inquiring into the matter,
the Council reports to the President that it is of the opinion--
(a) that
the Judge is incapable of performing the duties of his office or has been
guilty of misconduct, and
(b) that
he should be removed from office,
the President may remove the Judge from
office.
(7) A Judge of the Supreme Court or of a High
Court shall not be removed from the office except as provided by this Article.
(8) The Council shall issue a code of
conduct to be observed by Judges of the Supreme Court and of the High
Courts."
(B) AJK
Interim Constitution Act, 1974.
42-E. Supreme Judicial Council.--(1)
There shall be a Supreme Judicial Council of Azad Jammu and
(2) The Supreme Judicial Council shall
consist of:-
(a) The
Chief Justice of Azad
(b) The
Senior Judge of the Supreme Court; and
(c) The
Chief Justice of the High Court.
(3) A Judge of the Supreme Court or of
the High Court shall not be removed from office except as provided by this
Section.
(4) If, on information received from the
Supreme Judicial Council or from any other source, the Chairman of the Azad
Jammu and Kashmir Council or the President is of the opinion that a Judge of
the Supreme Court or of the High Court,--
(a) may
be incapable of properly performing the duties of his office by reason of
physical or mental incapacity; or
(b) may
have been guilty of misconduct, the Chairman or the President, as the case may
be, shall direct the Supreme Judicial Council to inquire into the matter.
(5) if, upon any matter inquired into by
the Supreme Judicial Council, there is a difference of opinion amongst its
members, the opinion of the majority shall prevail, and the report of the
Supreme Judicial Council shall be expressed in terms of the view of the
majority.
(6) If, after inquiring into the matter,
the Supreme Judicial Council reports to the Chairman of the Azad Jammu and
Kashmir Council that it is of the opinion,--
(a) that
the Judge is incapable of performing the duties of the office or has been
guilty of misconduct, and
(b) that
he should be removed from office, the Chairman shall advice the President to
remove the Judge from his office and the President shall pass orders
accordingly.
(7) The Supreme Judicial Council shall
issue a Code of Conduct to be observed by Judges of the Supreme Court and of
the High Court.
(8) If at any time the Supreme Judicial
Council is inquiring into the conduct of a Judge who is a member of the Supreme
Judicial Council, or a member of the Supreme Judicial Council is absent or
unable to act due to illness or any other case, then:
(a) if
such member is the Chief Justice or the Judge of the Supreme Court, the Judge
of the Supreme Court who is next in seniority;
(b) if
such member is the Chief Justice of the High Court, the senior most of the
other Judges of the High Court, shall act as a member of the Supreme Judicial
Council in his place.
(9) if, upon any matter inquired into by
the Supreme Judicial Council, there is difference of opinion amongst its
members, the opinion of the Supreme Judicial Council shall be expressed in
terms of the view of the majority."
(Underlining is mine)
A comparison of the above reveals that
for removal of the Judges of superior Courts on the ground of incapability of
performing the duties of their offices by reason of physical mental incapacity
or guilty of misconduct, the procedure of inquiry and report is provided under
Article 209 and Section 42-E, respectively. In the modern democratic system of
the Government, unlike other public functionaries, Judges of the superior
Courts are not immune from the process of accountability. However, in order to
save the Judges from being dragged into the ordinary Courts or tribunals, and
in order to strengthen the concept of "independence of judiciary", a
highest constitutional body is provided for removal of the Judges, composed of their
own brother Judges, on the grounds listed in Article 209 and Section 42-E of
the Constitution of Islamic Republic of Pakistan and Act, 1974 of Azad Jammu
and Kashmir, respectively. The
Supreme Judicial Council
is the highest constitutional body consisting upon
brother Judges who have taken oath under the Constitution to decide whatever
controversy is brought before them, without fear, favour and with impartiality.
The report/finding of such body regarding guilty/misconduct has been declared final
by the Constitution itself and the executive is not vested with any authority
to sit over it as appellate authority to exercise review or revisional
jurisdiction because the report and proceedings of Supreme Judicial Council are
immune from challenge under Section 42-G of the Act, 1974. The report of
Supreme Judicial Council is not subject to ratification, approval, confirmation
or consent of the Chairman of the Council, but is practically a direction to be
carried into effect through the notification. The Chairman has to direct to
issue an executive order on the basis of the report without unreasonable delay.
Though no timeframe is provided in the Constitution for issuance of
Notification, but it is implied that it has to be instantly notified as it does
not require any further action given the nature of its finality and
un-challengable-ness before any authority. Advice by the Chairman and President
cannot be procrastinated and has to be complied within reasonable time. The
Constitution itself visualizes the scheme, e.g. a bill passed by the
Legislative Assembly or Joint Sitting has to be consented by the President
within seven days under subsection (2) of Section 36 of the Constitution, and
if it is not done within that period, it shall be deemed to have been assented
as the will of the Parliament is final. On that analogy it can be concluded
that report should have been implemented within reasonable time i.e. seven days
from the date of receipt of report as the report of Supreme Judicial Council is
equally final. The purpose in both the cases is to uphold the supremacy of the
Parliament and independence of Judiciary, as the case may be, like judgments of
the Supreme Court or any other tribunal, which attain finality. Similarly the
report of the Supreme Judicial Council is also final and conclusive where the
Constitution or law means to leave a room for executive, notwithstanding the
finality of a judgment, it is expressly stated such as the limited powers of
the President under the Constitution of India, Pakistan and Azad Jammu and
Kashmir, relating to the clemency/remission of the sentences etc, where inspite
of judgment of a Court having become final, the President (the executive
authority) can alter it for the purpose of remission of the sentence. The principle
of finality of judgments even then remains undisturbed.
It may be observed that there is a marked
difference between the report/recommendations made by the Supreme Judicial
Council constituted under Article 209 of the Constitution of Islamic Republic
of Pakistan and Supreme Judicial Council constituted and established under
Section 42-E of the Act, 1974. In the former the President has the discretion
to accept or refuse the report because in sub clause 6(b) of Article 209,
reproduced hereinabove, the word "may" is used. Inspite of it, the
report/ recommendation of Supreme Judicial Council is instantly acted upon. See
the cases of Justice Akhlaque Hussain [PLD 1960 SC 260] and Justice Shaukat Ali
[PLD 1971 SC 585], respectively. But in subsection 6(b) of Section 42-E of the
Act, 1974, the Chairman is bound to advice the President to remove the Judge
from his office and the President is also bound to pass the order accordingly
in the light of the recommendations/report of the Supreme Judicial Council, as
the word "shall" is used for both. The Chairman is left with no
authority, except to perform the executive duty of his office as ordained by
the Constitution.
As stated above, the report of the
Supreme Judicial Council is conclusive and final in all respects because same
is not challengeable at any forum, therefore, affect of the report cannot be
nullified by non-issuance of the formal order which is a mere formality. In
Sardar Sabir Hussain Khan Abbasi's case [2002 SCR 62], the apex Court of AJK
observed that if direction is issued by the Prime Minister on an appeal or
review etc., writ can be issued in appropriate cases for implementation of the
same. The observation of the High Court that as the formal order was not issued
in pursuance of the order, the writ cannot be issued, is not sustainable. It
was held that after acceptance of the review petition by the competent
authority, it is duty of the concerned authority to implement such order
irrespective of the issuance of so-called formal order.
The contention of Raja Muhammad Hanif
Khan, the learned Advocate representing the AJK Government that only lawful
advice is binding on the AJK Government and the same should be implemented, has
a force. A full bench of this Court has already set at rest the controversy in
Mr. Justice (R) Muhammad Saddique Farooqi's case [Writ Petition No. 24/2001,
decided on 2.8.2001]. In para No. 15 of the judgment, the learned Judges
observed as under:-
15. "Now we will like to deal with
the next point which relates to the advice of the Council as to whether it is
binding on the President or not. From the reading of the Constitutional Act, it
becomes quite clear that in this Act affairs of this liberated part of the
Again in para No. 17 of the judgment it
was concluded as under:-
"17. We are quite clear that no
advice can be tendered against the express provisions of the Constitution and
if an advice is tendered in accordance with law and the provisions of the
constitution by the Azad Jammu and Kashmir Council or Government, the same
shall be binding on the President, any contravention thereof is liable to be
struck by the Courts."
In view of above, I am of the view that
after recommendation/ report of the Supreme Judicial Council dated 12.4.2010,
in which misconduct of the private respondent, herein, is proved, the private
respondent, herein, has ceased to be the Judge/Chief Justice of the Supreme
Court of Azad Jammu and Kashmir and the office of the Chief Justice is vacant,
hence, further proceedings in this petition will not serve any purpose.
As the office of the Chief Justice has
become vacant, therefore, the Government is directed to immediately initiate
proposal for appointment of permanent Chief Justice of the Azad Jammu and
Kashmir, by seeking the advice of the Chairman of AJK Council to the President
of AJK for approval and Notification, so that office of the Chief Justice of
Azad Jammu and Kashmir is filled without any further delay.
This petition stands disposed off
accordingly with the above stated constitutional position.
A copy of this order shall be sent to
Secretary AJK Council Secretariat,
(R.A.) Petition
disposed off.