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Petitioner: AZAD GOVERNMENT and others VS Respondent: GENUINE RIGHTS COMMISSION and others
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Sardar Said Muhammad Khan, Muhammad Younus Surakhvi Title: AZAD GOVERNMENT and others vs GENUINE RIGHTS COMMISSION and others Case No.: Civil Miscellaneous Application No,79 of 1998 Date of Judgment:1998-06-10 Reported As: 1999 MLD 160 Result: Applications rejected
Judgment ORDER ' SARDAR SAID MUHAMMAD KHAN, C.J.---Two miscellaneous applications in the above-entitled appeal, one by respondents Nos.2 and 3 and the other by respondents Nos. 1, 4 and 5, have been filed. As these applications pertain to the above-entitled appeal, we propose to dispose of the same by this single order. 2. In the application filed by respondents Nos.2 and 3, it has been prayed that this Bench should not hear the present appeal on the following grounds:-- (a)(i)That this Bench has already expressed its views on some of the points in. The President's Reference No,1 of 1998; (ii) that one of us (Chief Justice) is the Chairman of the Council of Islamic Ideology, which had made recommendations in terms that if Ulama are appointed as Judges in the High Court and the Supreme Court and the matters which are to be heard by the Shariat Court are entrusted to them for hearing, that would not be violative of Shariah; and (iii) that Mr. Iftikhar Hussain Butt, appellant, is Secretary to one of us (Muhammad Yunus Surakhvi) in his capacity as Chief Ehtisab Commissioner. (b) Subsequently, an affidavit was filed on 3-6-1998 by respondents Nos.2 wherein it was further alleged that Mr. Iftikhar Hussain Butt has personal friendship with Mr. Muhammad Yunus Surakhvi, J. 3. Respondents Nos.1, 4 and 5 have submitted a separate application praying that Full Court should hear and dispose of this appeal and that Ulama and Senior Advocates from Pakistan should be summoned as amicus curiae to assist the Court at State expenses. 4. We have heard the arguments. Mr. Ghulam Mustafa Mughal, one of the applicants-respondents, has argued that as the members of this Bench have answered the aforesaid reference, wherein
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more or less identical questions were involved, we should not sit on the Bench for hearing and disposal of this appeal, otherwise it would be violative of the principle that ' one should not sit as a Judge in his own cause'. He has further submitted that as one of us (Chief Justice), who is the Chairman of the Council of Islamic Ideology, made certain recommendations and, thus, has already expressed his opinion on one of the points which is subject of controversy in this appeal, he should not be a member of this Bench; and that as Mr. Iftikhar Hussain Butt, appellant, is Secretary to Muhammad Yunus Surakhvi, J., in his capacity as Chief Ehtisab Commissioner and his personal friend, he should also not hear this appeal. The learned counsel has referred to the following cases in support of his contentions:-- ' In a miscellaneous application entitled Ghulam Mustafa Mughal v. Azad Government in which an order was passed by one of us (Chief Justice) declining to hear the matter on the ground that the question which fell for determination was as to whether before making the appointments of the Additional Judges in the High Court, he was consulted as required by the Constitution. The relevant observations made by one of us (Chief Justice) are as under:-- ' "It may be observed that I happened to be the Chief Justice of the Azad Jammu and Kashmir at the relevant time. Thus, the controversy boils down to the question as to whether I was consulted before making the appointments of the non-applicants as Additional Judges of the High Court; and that if I was not consulted, what would be its effect on the said appointments." ' Obviously, in that case the matter which fell for determination was as to whether one of us (Chief Justice) was consulted before the appointments of the Additional Judges or not and if he was not consulted, how that would affect their appointments. The position of the Chief Justice in that case was akin to a witness; besides, in case it was found that the Chief Justice was not consulted, the concerned party might have apprehensions of bias against him. Obviously, the reasons which weighed with the Chief Justice in the said case, are distinguishable and cannot be pressed into service to support the view that if a Judge expresses the opinion in some earlier proceedings, he is debarred from hearing a cause subsequently in which identical questions are involved. 5. The other case relied upon by the applicants was (Criminal Appeal No,12 of 1991). In that case, the Judges who remanded the case to the trial Court for re-writing the judgment made certain observations regarding the appreciation of the evidence. After remand, the accused persons were acquitted but on appeal to the Sessions Judge, they were again convicted; the appeal filed by the accused-convicts before the Shariat Court was accepted and their conviction was set aside. An appeal against their acquittal by the Shariat Court was filed to this Court. The case came up for hearing before the same Bench which had previously remanded it to the trial Court for re-writing the judgment. The objections were raised by the accused-respondents that certain observations were made by this Court, while remanding the case, which were tantamount to express the opinion about the guilt of the accused persons and that one of the members of the Bench had been counsel for a party in bail matter. It was in the aforesaid circumstances that the Bench was reconstituted as a matter of 'propriety' and not on the ground that the members of the Bench were disqualified because they had previously remanded the case. Thus, the facts of the abovementioned case do not support the view that if a Judge expresses opinion on some questions of law in different proceedings as a Judge or expresses such opinion in different capacity, he is disqualified to hear the matter in subsequent proceedings on the ground that he is sitting as a Judge in his own cause. ' The case reported as Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), was relied upon by both the applicants-respondents as well as by the appellants in support of their respective contentions. The authority would be considered in the later part of this order. ' In case reported as President's Reference No,1 of 1996 (PLD 1997 SC (AJ&K) 1), one of us (Chief Justice) declined to hear the matter because the reference was made to this Court with regard to
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the validity of the view which was taken by the Bench of the High Court of which the Chief Justice had been a member as Judge of the High Court; in other words the view of the Chief Justice was directly in issue. Thus, he declined to sit on the Bench as a matter of propriety rather than on the ground that he was disqualified to hear the reference. ' In case reported as Khawaja Ahmad Din v. Muhammad Shabir Khan [(1994 SCR 142)], the facts were that an inquiry was held against a civil servant in which it transpired that the proceedings of misconduct against the concerned civil servant were initiated as a result of litigation between the father of the civil servant and the department. One of the Judges, who heard the appeal, expressed the view that in the said circumstance, the concerned civil servant was justified to apprehend bias in the mind of the Inquiry Officer from the department and, thus, held that the inquiry stood vitiated while the other member of the Bench disagreed with the said view and wrote a dissenting order. ' The case reported as Islamic Republic of Pakistan v. Abdul Wali Khan M.N.A. (PLD 1976 SC 57), was also relied upon by both the contending parties. Thus, it would also be considered in the later part of this order. ' In case reported as Manak Lal v. Dr. Prem Chand Singhvi (PLD 1957 SC (Ind.) 346), the facts were that the Tribunal which was constituted to probe into the misconduct of an Advocate was headed by the Chairman who was counsel for the opposite party in the case in which the misconduct was allegedly committed. It was observed in the aforesaid circumstances that the possibility of bias in the mind of the Advocate, who was the Chairman of the Tribunal, could not be ruled out. Thus, the inquiry proceedings were held vitiated. ' In case reported as Gullappalli Nageswararao v. State of Andhra Pradesh (AIR 1959 SC 1376), it was held that as the State Government had pecuniary interests in the scheme launched under the provisions of Motor Vehicle Act, it could not be a Judge in the dispute which has arisen between the Government and the owners of private vehicles because that would 'be violative of the principle that one should not be a Judge in his own cause. As in the instant case, there is no allegation of pecuniary interests of the Bench, the authority has no relevancy. ' In case reported as Special Reference No,1 of 1991 (AIR 1992 SC 522), a reference was made to the Supreme Court by the President under Article 143 of the Indian Constitution with regard to the vires of an Ordinance. The same was answered by the Supreme Court. Thereafter, the President again sought reconsideration of the answers which were previously given by the Supreme Court. It was held by the Supreme Court that the advisory opinion already given by the Supreme Court could not be reviewed under the Constitution. This case has also no relevancy to the facts of the present applications. ' In an unreported case entitled Ghulam Nabi Saleem Chishti v. Sh. Abdul Qayyum (Civil Appeal No,52 of 1997, decided on 12-2-1998), on appeal, the case was remanded to the High Court with the observations that as allegation against the Judge of the High Court was that he had forced the appellant to enter into a compromise it was proper that the case was heard by some other Judge of the High Court. ' In another unreported case entitled Sh. Attaullah v. Mian Riaz Ahmad (Civil Appeal' No,15 of 1994, decided on 12-7-1994), the appeal was accepted holding that the Selection Board did not comply with the directions which were previously given by the Supreme Court. Thus, it was observed by this Court that the members of the Board who had previously made the recommendations which were set aside by the Supreme Court should not be included as members in the Selection Board which would consider the matter afresh. 7. Mr. Ashfaque Hussain Kayani, Advocate-respondent, arguing the case on behalf of respondents Nos.1, 4 and 5, has maintained that there are important law points involved in this case and, thus, it would be in the interest of justice if the case is heard by the Full Court. He has further argued that as the appeal has been filed by the Government at State expenses, it is necessary in the interest of
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justice that eminent scholars and senior Advocates from Pakistan are summoned as amicus curiae at State express to address arguments in the present appeal. 8. In reply, Ch. Muhammad Ibrahim Zia, Advocate, the learned counsel for appellants Nos.1, 3 and 4, has vehemently argued that the arguments advanced on behalf of the applicants-respondents are contradictory. He has argued that on the one hand they argue that the opinion given by this Court in reference is not binding and on the other they contend that this Bench is not competent to hear the appeal because it had expressed Its opinion in the reference. The learned counsel has further argued that the mere expression of view in the earlier legal proceedings does not debar the Judges to rehear the matter even between. The same parties. He has further argued that it is well- settled principle of law that the view taken in the earlier proceedings can be changed by the superior Courts and the same is not binding on them. The learned counsel has contended that when the view taken by this Court in Reference No,1 of 1998 was not binding on the parties or on the Courts below, how it is binding on this Court that it cannot be changed by this Court if the same is shown to be incorrect. The learned counsel has submitted that this Court has given power to review its judgment, orders etc.; thus, it can recall its earlier order if it finds the same to be incorrect. Therefore, according to the learned counsel, it is not correct to suggest that the previous view disqualifies the Judges to sit on the Bench constituted for the hearing of the present appeal. The learned counsel has referred to a case reported as Raja Muhammad Niaz Khan v. Azad Government of the State of Jammu and Kashmir (PLD 1988 SC (AJ&K) 53), wherein it has been held that this Court was not bound by its view given by it in the earlier proceedings and is at liberty to change the same if convinced that its earlier view was not correct. After dealing the case law on the point in detail, it has been held that if earlier view taken by the Court is found to be incorrect, the same can be changed in the subsequent proceedings. The learned counsel has also referred to the case reported as Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61), Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) and Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. (PLD 1976 SC 57) in support of his contention that the view expressed by a Judge in earlier proceedings does not .Debar him to hear a cause subsequently on the ground that he would be a Judge in his own cause. As has been stated earlier, these authorities have also been relied upon by the applicants-respondents, the same would be considered in the later part of this order. The learned counsel has also argued that even otherwise it is not possible to constitute another Bench for hearing and disposal of the present appeal because Mr. Justice Basharat Ahmad Shaikh has declined to associate himself with the Bench while four Judges of the High Court are party to the impugned judgment and the Chief Justice of the High Court had declined in writing to be the member of the Bench which heard and disposed of the writ petitions on the ground that he was also the Chief Justice of the Shariat Court whose constitutionality has been challenged. Thus, according to the learned counsel for the appellants, even in view of the doctrine of necessity as enunciated in the aforesaid authorities cited by him, this Bench is not disqualified to hear the present appeal. The learned counsel has contended that it is incorrect that Mr. Iftikhar Hussain Butt is a personal friend of Mr. Muhammad Yunus Surakhvi, J. He has maintained that the affidavit to that effect has been filed today with ulterior motives so that the learned members of the Bench could not hear the appeal. The point was not raised in the concise statement filed by the applicants-respondents or in the application initially filed. The learned counsel has further submitted that mere fact that the said appellant is also Secretary to Mr. Muhammad Yunus Surakhvi, J., in his capacity as Chief Ehtisab Commissioner, does not disqualify him from hearing the appeal. The learned counsel has argued that the objections taken in the application were not taken either at leave stage or in the concise statement filed by the applicants-respondents and, thus, the same cannot be agitated at the belated stage.
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9. Raja Shiraz Kayani, Advocate-General, appearing for appellant No,1, owns the arguments advanced by Ch. Muhammad Ibrahim Zia, Advocate, and has further submitted that the application submitted on behalf of respondents Nos.1, 4 and 5 was preposterous in which a prayer has been made that senior Advocates and Muslim scholars from Pakistan should be summoned at State expenses to address the Court in the matter. The learned Advocate-General has submitted that if the applicants-respondents so choose, they may engage any counsel or scholar, if the law so permits, from Pakistan at their own expenses. He has submitted that there is no law that appellants should engage counsel for respondents in a civil matter. 10. We have given due consideration to the arguments raised at the Bar. It may be stated at the very outset that most of the authorities relied upon by the learned counsel for the applicants- respondents are not relevant to the facts of the case in hand; in the instant case there is no question of any pecuniary interests of the Judges in the subject-matter of the appeal. So far as the other authorities relied upon by the learned counsel for the applicants are concerned, those do not pertain to the proposition as to whether a Judge is disqualified from sitting on a Bench merely because he had earlier expressed his opinion on a law point involved in the case. All the authorities cited at the Bar support the view that an earlier expression on a question of law does not disqualify a Judge to sit on the Bench subsequently to hear a cause even if the matter is between the same parties. 11. So far as the argument that the Chief Justice is also the Chairman of the Council of Islamic Ideology, which had made recommendations on the reference by the Prime Minister of the time and, thus, he should not associate himself with the Bench is concerned, it is not only misplaced but is also devoid of any force. The facts are that in answer to the reference made by the Prime Minister of the time, the Council of Islamic Ideology opined that if religious scholars were appointed as Judges in the High Court and the Supreme Court and their separate Benches were constituted for hearing certain matters which were heard by the Shariat Court, that would not be against Qur'an and Sunnah. Thus, the opinion expressed was not on the point as to whether the constitution of the Shariat Court is violative of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which was one of the in the reference made by the President and is also involved in the present kappeal. It hardly needs any further elucidation that the opinion expressed by the Council of Islamic Ideology was altogether on a different question and in different context. Even otherwise, if the said recommendations are relevant, those are in favour of the respondents and, thus, they cannot seek the reconstitution of the Bench on that ground rather they can avail the same at the time of arguments in the appeal. 12. The moot point in the instant case is as to whether the present members of the Bench are disqualified to hear this appeal because they have dealt with some of the points while answering President's Reference No,1 of 1998. It may be stated that it is well-settled principle of law that a Judge is not disqualified from hearing a cause merely because he has expressed his opinion earlier in the capacity as Judge or otherwise. It would be expedient here to make a survey of case law on the point. The three authorities which were relied upon by the learned counsel for the applicants-respondents as well as by the appellants, would also be discussed below:-- ' In case reported as Federation of Pakistan v. Hazoor Bukhsh by PLD 1983 Federal Shariat Court 255), the facts were that some of the Ulama Judges, who were to decide the cases, had expressed their opinion in the books written by them and otherwise about the matter in controversy which they were to decide. Thus, it was contended that as they had already expressed their opinion, they were disqualified from hearing the cases because that would tantamount to sit as Judges in their own cause. The contention was repelled and it was observed that the earlier opinion of a Judge on a legal question does not disqualify him from hearing the matter as a Judge. It was further
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observed that the Judges against whom the objection was raised would hear the matter with open mind and can change the view if they were so convinced. ' In case reported as Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. (PLD 1976 SC 57), the facts were that a specific allegation was made against a Judge that before his elevation to the Bench of the Supreme Court, he had been Secretary Law and Minister in the Central Government and, thus, he was instrumental in banning the National Awami Party. It was contended that he was debarred from sitting as a Judge to hear the case in view of the bias which might be present in his mind. The contention was repelled observing that no Judge can possibly be disqualified to hear a cause on the basis of the aforesaid ground. It was further observed that in absence of any Constitutional or statutory bar, a Judge is not disqualified to hear a cause, because he had participated other legal proceedings against the person concerned in the capacity of a Judge or Administrative Tribunal or an official. The connotation of word ' bias' and the principle that one should not sit as a Judge in his own cause' was examined in detail and it was held inapplicable to such cases. ' In case reported as Muhammad Hafeezullah v. Government of Punjab (PLD 1983 Federal Shariat Court 27), an objection was raised that the Chief Justice should not associate himself with the Bench for hearing and disposal of the matter because he had already expressed his opinion on the question in another case which is reported as PLD 1981 FSC 139-(144). It was observed that the mere fact that a Judge was a party to the earlier judgment and expressed a definite opinion on a question of law did not debar him from being a member of the Bench constituted for hearing a case in which the similar question was involved. ' In case reported as The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585), the facts were that the Supreme Judicial Council made a scrutiny of declaration of assets under Article 4 of the President Order 4 of 1969 and made certain recommendations to take proper action against a Judge. The President, after receiving the report of the Council with regard to scrutiny of the assets, sent the reference to the Supreme Judicial Council for inquiry into the conduct of the Judge against whom the report was previously submitted by the Council. An objection was raised that the Judges, who had previously scrutinized the assets of the concerned Judge and made the report against him, were disqualified to take part in the proceedings of the Supreme Judicial Council because they had already expressed the opinion in the matter. It was observed that mere allegation of bias was not sufficient to disqualify a Judge from hearing a cause; it was further observed that in absence of any pecuniary interest in the subject-matter of the proceedings, it is essential that the existence of bias is established. It was also held that the earlier report regarding assets was not sufficient to disqualify the concerned Judges to sit as members of the Supreme Judicial Council. It was further observed that even where a Judge, who is disqualified as being relative or otherwise of the parties concerned, he can sit as a Judge in certain eventualities out of necessity, such as, where the quorum is not complete etc. ' Again in a case reported as Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 SC 689), the facts were that the Lahore High Court held that the appointment of the Prime Minister after the dissolution of the National Assembly by General Zia-ul-Haq was necessary. On appeal to the Supreme Court, the judgment of the Lahore High Court was affirmed. Thereafter, the Government of Pakistan, in pursuance of the judgment of the Supreme Court issued a notification whereby the acts done, orders passed and appointments made etc. During the period when there was no Prime Minister, were to be regularised. Mr. Muhammad Akram Shaikh, Advocate, filed an application seeking clarification of the judgment of the Supreme Court on various grounds. A Bench consisting of four Judges of the Supreme Court heard the application and deleted certain portions of the judgment. Against the order passed by four Judges, the Government filed a review petition and prayed that the said review petition should be heard by Full Court, excluding the three
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Judges who had decided the application made by Muhammad Akram, Advocate, because they had already given their opinion in the matter and that they were also hit by the earlier judgment, as their appointments were made during the period when there was no Prime Minister. A Bench consisting of all the Judges of the Supreme Court was constituted for hearing the review petition filed by the Government. It was held by the Court that three Judges, who had previously expressed the opinion in the application filed by Mr. Muhammad Akram Shaikh, Advocate, were not debarred from associating themselves with the Bench. The connotation of principle that ' one should not sit as a Judge in his own cause' was examined in detail and it was observed that the mere fact that a Judge had previously expressed opinion on a law point is not disqualified from hearing the said matter again. It was further observed that even in cases where a Judge is legally debarred from hearing a matter on the basis of relationship or any…
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