GHULAM MUSTAFA MUGHAL Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR THROUGH CHIEF SECRETARY

1. The abovenoted two cross‑appeals relate to the appointment of two Additional Judges of the Azad Jammu and Kashmir High Court and arise out of a single judgment of a Division Bench of the High Court. The High Court has dismissed a. quo warranto writ filed by the President and the Secretary of the Central, Bar Association, Muzaffarabad Mr. Ghulam Mustafa Mughal and Mr. Zubair Abdul Malik but has held that the appointment of Sardar Sajawal Khan and Mr. Muhammad Siddique Farooqi as Additional Judges was. unconstitutional. The reason recorded for refusing to issue writ of quo warranto is that due to the bar contained in subsection (5) of section 44 of the Azad Jammu and Kashmir Interim Constitution Act (hereinafter to be referred to as "the Constitution Act") a writ cannot issue against a Judge of the High sCourt. In Civil Appeal No. 32 of 1991 Mr. Ghulam Mustafa Mughal and Mr.Zubair Abdul Malik have. challenged that part of the judgment of the High Court by which it has been held that a writ could not issue against the respondents. On the other hand Mr. Muhammad Siddique Farooqi in his appeal (Civil Appeal No.33 of 1991) has challenged the view expressed by the High Court that his appointment as Additional Judge was not in accordance with the Constitution Act and, alternatively, has argued that recording of this view was not warranted due to the legal position accepted by the High Court that it had no jurisdiction in the matter in view of the bar contained in subsection (5) of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

2. The facts of the case are that on 21st of January 1991 a Notification was issued by the Law and Parliamentary Affairs Department which was to the effect that the President had appointed Sardar Muhammad Sajawal Khan and Mr. Muhammad Siddique Farooqi as Additional Judges of the High Court. The Notification, however, provided that they shall continue to perform the functions, respectively, of the Chairman of the Service Tribunal and Law Secretary. The order runs as follows:‑‑

NOTIFICATION

3. No.3‑7‑1991‑O.A.D.‑‑In exercise of the powers conferred by subsection (6) of section 43 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the President, Azad Jammu and Kashmir is pleased to appoint Messrs Sardar Muhammad Sajawal Khan, Chairman, Service Tribunal and Muhammad Siddique Farooqi, Law Secretary, as Additional Judges of the High Court for the period for which they are eligible to hold the office of the Judge, High Court.

(2) This Notification shall not affect their present appointments and they shall, after entering upon the office of the Additional Judges of High Court continue to perform the functions of the Chairman, Service Tribunal and the Law Secretary, respectively."

4. This order was issued under the authority of the Acting President. When the President returned from abroad he issued a Notification cancelling the Notification reproduced above, but the Azad Government of the State of Jammu and Kashmar issued another Notification declaring that the order of the President issued by the President's Secretariat was null and void. Since these orders are not relevant for the disposal of the present appeals, I need not go into their details.

5. On 18th of February 1991 Mr. Ghulam Mustafa Mughal and Mr. Zubair Abdul Malik, who are President and Secretary of the Central Bar Association Muzaffarabad, filed a writ petition challenging the aforesaid appointments. The writ petition was decided on 11‑8‑1991. I have already noted that the writ petition was dismissed on account of the bar contained in subsection (5) of section 44 of the Constitution Act but the appointments under reference were held to be inconsistent with the provisions of the Constitution Act. For holding that appointments of Sardar Muhammad Sajawal Khan and Mr. Muhammad Siddique Farooqi were invalid, two reasons have been recorded in the judgment under appeal. The first reason is that they were appointed without advice of the Azad Jammu and Kashmir Council and without consultation of the Chief Justices of Supreme Court and High Court as was required by subsection (2‑A) of section 43 of the Constitution Act. It was held that a Judge is defined in section 2 of the Constitution Act to include an Additional Judge of the High Court, therefore, the prerequisites of the aforesaid advice and consultation were fully applicable to an Additional Judge. The other reason recorded by the High Court is that under subsection (6) of section 43 an Additional Judge can be appointed during the absence of a Judge of the High Court but the two respondents were appointed, as it appeared from the appointment order, as permanent Judges and not in place of absent Judges.

6. The two appeals were heard together. While Raja Muhammad Hanif Khan appeared on behalf of Mr. Ghulam Mustafa Mughal and Mr. Zubair Abdul Malik in both the appeals, Sardar Rafique Mahmood Khan ‑appeared on behalf of Mr. Muhammad Siddique Farooqi. So far as the Azad Government of the State of Jammu and Kashmir is concerned it was proceeded against ex parte. Sardar Muhammad Sajawal Khan also did not choose to contest Appeal No.32 in which he is impleaded as a respondent and arguments were heard ex parte against him also.

7. Before taking up the two appeals, I have to take note of a development which took place after announcement of judgment on 18‑8‑1991. On 14‑10‑1991 the President of Azad Jammu and Kashmir rescinded the appointment order of Sardar Sajawal Khan and Mr. Muhammad Siddique Farooqi. It was stated in the Notification that these appointments were in violation of section 2 and subsection (6) of section 43 of Azad Jammu and Kashmir Interim Constitution Act. The order runs as follows:‑‑

8. In view of this development a question cropped up whether the appeals had become anfractuous because the posts held by Sardar Muhammad Sajawal Khan and Mr. Muhammad Siddique Farooqi had already fallen vacant. The question arose whether any useful purpose will be served by adjudicating upon the correctness or otherwise of the judgment of the High Court. Consequently the learned counsel for the parties were asked to assist the Court in resolving this point. Both the learned counsel Sardar Rafique Mahmood Khan and Raja Muhammad Hanif Khan expressed the opinion that the appeals have to be decided on merits. Sardar Rafique Mahmood Khan contended that his appeal had not become infructuous because there was a judgment against his client and subsequent to the judgment, the President of Azad Jammu and Kashmir had terminated his appointment. He pointed out that in the order of termination it has been specifically stated that the appointment was being terminated ‑because it was against subsection (6) of section 43 read with section 2 of the Constitution Act which is clear indication of the fact that it was the judgment of the Court which had' led to the passing of this order. He submitted that even otherwise the present is an appeal against an adverse judgment of the High Court and it is in the interest of justice that the judgment should be vacated. Raja Muhammad Hanif Khan supported the opinion expressed by Sardar Rafique Mahmood Khan. He also submitted that when substantial questions of law arc, involved it has been practice of this Court as well as the Supreme Court of Pakistan to decide the cases on merits even if no relief can be transposed in a concrete shape. He referred us to cases reported as `Sardar Sikandar Hayat Khan 'v. Government of the Azad Jammu and Kashmir' PLD 1978 SC (AJ&K) 12 and `The Government of the Punjab v. Dr. (Mrs). Shamim Raza Bukhari' PLD 1990 SC 731. In Sardar Sikandar Hayat's case the facts were that Sardar Sikandar Hayat Khan challenged the detention of Sardar Muhammad Abdul Qayyum Khan. The detention order was upheld by the High Court and an appeal was brought to this Court against the judgment of the High Court. Before the appeal came up for hearing Sardar Muhammad Abdul Qayyum Khan had been released from custody and a question arose whether the appeal had become infructuous and was liable t be dismissed on that ground. This Court heard the appeal on the merits of the case and proceeded to examine the legality of the detention order although the detenu had already been released from custody. In doing so the Court made the following observations:‑‑

9. "We do not think that there. is. any bar, in the circumstances of this case, against hearing the appeal, challenging the legality and other allied 'natters of the detention. It is moreso when it is conceded that on vital matters of law, High Court had departed from the time attested conventional views. We, therefore, proceed to hear the appeal on all points raised therein."

10. In the case of the Shamim Raza Bukhari the facts were that leave had been granted to Government of the Punjab as well as respondent No.2 but when the appeals came up for hearing respondent No.2 had retired from the service and he was not interested in prosecuting his appeal nor contesting the appeal filed by the Government of Punjab. Respondent No.2, namely, Dr. Shamim Raza Bukhari had also retired and was not represented before the Supreme Court. After taking note of these facts Shafiur Rahman, J., speaking for the Court, observed as follows:‑‑

11. "However as the questions raised in the appeal of the Government of Punjab concern question of law of public importance, we have undertaken to dispose of this appeal independently on merits and ex parte against the respondents."

12. These two judgments clearly point to the practice that where questions of law of public importance are involved the Courts of ulitmate jurisdiction decide the appeals on merits. In the present appeals there can be no doubt that questions of law of public importance of the highest order are involved. Particularly the point whether a writ of quo warranto lies in order to challenge the appointment of a Judge of the High Court is a matter which, in my opinion, cannot be left unresolved by this Court. There is a judgment of this Court reported as `Amjad Hussain v. Ghulam Rasool Mir' 1991 P.Cr.L.J. 685 laying down that a quo warranto writ lies against a Judge but this judgment has been held to be distinguishable in the judgment under appeal and the High Court has reached the conclusion that a writ of quo warranto cannot issue against a Judge of the High Court even if his appointment is held to be invalid. The other question involved in the case, namely, whether an Additional Judge can be appointed without advice of the Azad Jammu and Kashmir Council and whether consultation with the Chief Justices in this respect is necessary or not is also a constitutional point of public importance and the state of law on this point cannot be left in a melting pot. Apart from that, I .am of the view that when the High Court had delivered a judgment against Mr. Muhammad Siddique Farooqi it became necessary for him to file an appeal against it and this Court should not decline to hear his appeal. This is more so in view of the fact that the phraseology of the order passed on 21‑1‑1991, by which the appointment of Mr. Farooqi was rescinded, does lead to the inference that it is the order of the High Court which has been acted upon by the President of Azad Jammu and Kashmir. In these circumstances I am clearly of the view that the appeals must be decided on merits.

13. I first take up appeal filed by Mr. Muhammad Siddique Farooqi in which he has challenged the view taken by the High Court that his appointment as Additional Judge was in violation of the Constitution Act. The examination of the state of law must begin with the reproduction of the relevant provisions. Section 2 of the Constitution Act contains the following definition of the word `Judge' :‑‑

14. 'Judge' in relation to the Supreme Court of ‑Azad Jammu and Kashmir or the High Court includes the Chief Justice of the Supreme Court of Azad Jammu and Kashmir or, as the case may be, High Court and also includes an Additional Judge of the High Court."

15. Subsection (2‑A) of section 43 reads as follows:‑‑

16. "(2‑A) A Judge of the 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 and Kashmir; and

(b) except where the appointment is that of Chief Justice, with the Chief Justice of the High Court."

17. Subsection (6) of section 43 runs as follows:‑‑

(6) If at any time any Judge of the High Court is absent or is unable to perform his functions due to illness or some other cause, the President may appoint a person qualified for appointment as a Judge of the High Court to be an Additional Judge of the High Court for the period for which the Judge is absent or unable to perform his functions."

18. The question to be resolved, is whether subsection (6) is controlled by subsection (2‑A) or not. The High Court has formed the view that the word `Judge' is defined in section 2 to include an Additional Judge of the High Court therefore when subsection (2‑A) of section 43 provides that a Judge of the High Court shall be appointed by the President on the advice of the Council and after consultation with the Chief Justices of Azad Jammu and Kashmir and of the High Court, this provision would apply to an appointment of an Additional Judge of the High Court. While Raja Muhammad Hanif Khan vehemently supported the view taken by the High Court. Sardar Rafique Mahmood Khan contended that subsection (6) contains a special provision as compared to a general provision contained in subsection (2‑A) and subsection (6) is a self‑contained provision and it does not lay down that an Additional Judge of the High Court would be appointed on the advice of the Council or after consultation with the Chief Justices. He submitted that in definition clause, namely, section 2 it is clearly provided that the definitions given in it do not apply if there is anything repugnant in the subject or context. He submitted that before applying a definition it has‑always to be seen whether the subject or context is repugnant to the definition or not. He submitted that if this definition of Judge is indiscriminately applied then in subsection (5) of section 43 an Additional Judge who is appointed for limited period would hold office till he attains the age of sixty‑two years. Sardar Rafique Mahmood Khan also relied on a comparison of the corresponding provisions in the Constitution of Pakistan (1973) in which Article 193 lays down that a Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the High Court while the appointment of an Additional Judge is provided for in Article 1.97 which lays down as follows:‑‑

19. "197. At any time when‑‑

(a) the office of a Judge of a High Court is vacant; or

(b) a Judge of a High Court is absent or is unable to perform the functions of his office due to any other cause; or

(c) for any reason it is necessary to increase the number of Judges of a High Court, the President may, in the manner provided in clause (1) of Article 193, appoint a person qualified for appointment as a Judge of the High Court to be Additional Judge of the Court for such period as the President may determine, being a period not exceeding such period, .if any, as may be prescribed by law."

20. He pointed out that in Article 197 it is specifically laid down that an Additional Judge will be appointed by the President in the manner provided in clauses (1) of Article 193 which leads to the clear conclusion that an Additional Judge shall be appointed with the consultation of the Chief Justice and the Governor but in subsection (6) of section 43 of the Constitution Act the words "in the manner provided in subsection (2‑A)" do not appear. Drawing upon this comparison the learned counsel pointed out that the advice of the Council as well as consultation with the Chief Justices was not required while appointing an Additional Judge of the High Court.

21. On the other hand Raja Muhammad Hanif Khan submitted that there was no ground for reaching the conclusion, as canvassed by Sardar Rafique Mahmood Khan, that there was anything in the subject or context which may render the definition of `Judge' as contained in section 2 of the Constitution Act as inapplicable. He submitted that after having once laid down that a Judge of the High Court; which expression includes an Additional Judge of the High Court, shall be appointed on the advice of the Council and in consultation with the Chief Justices, there was no need of repeating the same provision in subsection (6) or of laying down again in subsection (6) that an Additional Judge would be appointed in the manner provided in subsection (2‑A). He referred us to Article 96 of the Constitution of Pakistan (1962) in support of his contention. Article 96 supra is to the following effect:‑‑

22. "96. If, at any time‑‑

(a) the office of a Judge of a High Court is vacant;

(b) a Judge of a High Court is absent or is unable to perform the functions of his office due to illness or some other cause; or

(c) for any reason it is necessary to increase the number of Judges of a High Court, the President may appoint a person qualified for appointment as a Judge of the High Court to be an Additional Judge of the Court for such period as the President may determine, being a period not exceeding such period, if any, as may be prescribed by law."

23. He submitted that, except clause (c) which deals with another situation, Article 96 is para meteria with subsection (6) of section 43 of the Constitution Act. In both the provisions it is not laid down that a Judge shall be appointed in the manner prescribed in the other provision relating to permanent Judge. He emphasised that it had added significance because of the fact that subsection (6) and subsection (2‑A) both are a part of a same section and are not independent sections so as to be construed in isolation.

24. After giving anxious thought to the provisions under examination in light of the submissions of the learned counsel for both the parties, I have reached the conclusion that the High Court has formed the correct view that Additional Judge can only be appointed after fulfilling the requirements of subsection (2‑A), namely, if there is advice of the Azad Jammu and Kashmir Council and if the Chief Justices of Azad Jammu and Kashmir and High Court have been duly consulted. The reasons are not far to seek. As has been seen, the definition of the words Judge of the High Court includes an Additional Judge of the High Court, therefore, when it is provided in subsection (2‑A) of section 43 that a Judge of the High Court shall be appointed on the advice of the Council and after consultation with the Chief Justices this definition has to apply unless it is found to be repugnant to the subject or context. But I do not find any such repugnancy. Sardar Rafique Mahmood Khan vehemently contended that the definition did not apply to subsection (6) of section 43 but tie failed to point out any repugnancy. An illustration of repugnancy is available in section 43 itself. Subsection (5) of section 43 lays down that:‑‑‑

25. "The Chief Justice or a Judge of the High Court shall hold office until he attains the age of sixty‑two years unless he sooner resigns or is removed from his office in accordance with law."

26. The term "Judge of the High Court", according to definition given in section 2, includes an Additional Judge. Would then an Additional Judge also hold office Mill he reaches the age of sixty‑two years. As noticed, it is provided in subsection (6) that an Additional Judge will hold office for the period for which a Judge is absent or unable to perform his functions. Since these two provisions regarding the tenure of office contained in subsection (5) and subsection (6) cannot stand together, it is a clear case of repugnancy. Therefore, the definition of a Judge of the High Court as contained in section 2 would be treated as inapplicable. There being no such repugnancy in, subsection (2‑A) and any other provision, I hold that the definition of a Judge as contained in section 2 would apply to subsection (2‑A) and consequently subsection (2‑A) would be construed to require that an Additional Judge would also be appointed on the advice of the Azad Jammu and Kashmir Council and after due consultation with the Chief Justices.

27. Coming to the argument that subsection (6) is a special provision while subsection (2‑A) is general in nature, therefore, the provisions of subsection (6) override subsection (2‑A), I may observe that an Additional Judge is appointed in given circumstances which can be termed as a special situation . while permanent Judge can be appointed under subsection (1) of section 43 so as to fulfil the requirements that the High Court shall consist of a Chief Justice and some other Judges, the number being left to be determined by an Act of the Assembly. To that extent the distinction between the two provisions is obvious and it can legally be argued, as was done by Sardar Rafique Mahmood Khan, that subsection (6) deals with a special situation. However the special situation does not extend to the extent to which Sardar Rafique Mahmood Khan wants it to be stretched. Since it has already been provided in subsection (2‑A) that a Judge of the High‑Court shall be appointed on the advice of the Council and after consultation with the Chief Justices there was no need of repeating this provision in subsection (6). I may observe that a repetition of this provision would not have created any defect in subsection (6) but its absence does not have any significance. An argument was advanced that the qualifications of a Judge of the High Court are laid down in subsection (3) of section 43 but subsection (6) lays down that a person qualified for appointment as a Judge of the High Court would be appointed as Additional Judge which shows that subsection (6) is a self‑contained provision and should be read in isolation. I think this argument has no force because it is just a case of repetition which could have been avoided. I am quite clear in my mind that if a provision is repeated it makes no difference in its interpretation. Unnecessary repetition may be treated as a surplusage. I have already not that Raja Muhammad Hanif Khan drew our attention to Article 96 of the Constitution of Pakistan (1962) which is para meteria with subsection (6) of section 43 of the Constitution Act and a reading of the two .provisions shows that subsection (6) in our Constitution has been borrowed, except sub clause (c), from Article 96 which has already been reproduced. Article 96 did not contain any reference to the mode or manner of appointment as has been done in Article 197 of 1973 Constitution but it has never been thought that an Additional Judge can be appointed otherwise than after the requisite consultation with Chief Justices and the concerned Governor. Entertaining such a thought while interpreting subsection (6) of section 43 of the Constitution Act of which the wordings have been borrowed from Article 96, including the words "a person qualified fog appointment as Judge of the High Court", appears to be entirely unjustified.

28. The conclusion to which I have reached is also in accordance with reason. If subsection (2‑A) is found to be inapplicable to appointment of an Additional Judge when the result would be that an Additional Judge would be appointed without the consultation of the Chief Justice of the Supreme Court as well as of the High Court. In the Judicial system prevalent in most parts of the civilised world the choice of a Judge of a Superior Court is dependent on prior consultation with the Chief Justices and it is only after that requirement has been fulfilled that a person can be appointed as a Judge of the Supreme Court. If we treat subsection (6) to be independent of subsection (2‑A) consultation with the Chief Justices would be done away with and all that would be required would be that a President would have the choice to appoint any person, who fulfills the basic qualifications, as Additional Judge. Now it is well known that the President has no occasion of knowing knowledge of law and other traits of personality of the concerned persons. How then the President would judge the suitability of a person to be appointed as an Additional Judge?. The appointment of a Judge of a High Court is the outcome of evaluation made by the Chief Justices on the basis of first hand knowledge which the Chief Justices gain while dealing with a person as an Advocate or as a subordinate Judicial Officer. This is the modus operendi which has been evolved for making choice of a Judge and has therefore been incorporated in the written Constitutions. Since an Additional Judge, in spite of being in a delicate position due to the nature of incumbency, performs the same functions as a Judge it is in accord with reason to construe that manner of appointment should not be different. The present system is the safest found so far and should be allowed to continue till it is replaced with a better one.

29. It follows that the high Court was right in reaching the conclusion that the appointments under dispute were invalid because they were not based on advice of the Azad Jammu and Kashmir Council. The conclusion is therefore upheld.

30. There is another reason which has found favour with the High Court for holding that the appointment of the two Additional Judges was invalid. The High Court has held that an Additional Judge can only be appointed if a Judge of the High Court is absent or unable to perform his functions while in the present case there was no such situation. It is nobody's case that any Judge of High Court was absent. What has been advocated is that there had been occasional demands from the High Court that some cases could not be heard by the sitting Judges of the High Court and for that purpose Additional Judges were required and therefore, Sardar Muhammad Sajawal Khan and Mr. Muhammad Siddique Farooqi were appointed as Additional Judges. This argument has no force. Subsection (6) of section 43 of the Constitution Act clearly lays down that Additional‑Judge can only be appointed if a Judge is absent or is unable to perform his functions. Since this is the only situation which is visualised by the Constitution Act an Additional Judge can only be appointed if such a situation has actually arisen. If it is not so, the question o appointing an Additional Judge does not arise if we have to remain within the domain of law. Subsection (6) does not lay down that if a Judge of High Court is unable to hear a case an Additional Judge may be appointed. An Additional Judge can only be appointed if a Judge is not functioning. If a Judge is unable to hear a case it cannot by any stretch of imagination be said that he is not able to perform his functions. It is clear from this subsection that an Additional judge has to sit in the High Court in place of a Judge like a substitute. The two cannot take the field together. The High Court was right in pointing out that even otherwise an Additional Judge is appointed for a period contemplated by subsection (6) but the respondents were appointed to hold office virtually till attaining the age of 62. This order was therefore in total disregard of every part of subsection (6) and, as held by the High Court, the appointments were invalid on this ground also.

31. The learned counsel for the appellant Sardar Rafique Mahmood Khan then tried to justify the appointment of the appellant in light of Azad Jammu and Kashmir Courts and Laws Code (Amendment) Ordinance by which subsection (1) of section 5 of the Courts and Laws Code, 1949 was substituted to read as under:‑‑‑

32. "5.‑‑(1) The High Court shall consist of a Chief Justice and three other Judges:

33. Provided that at any time when for any reason it is necessary to increase the number of Judges, the President may appoint a person qualified for appointment as Judge of the High Court to be an Additional Judge for such period as the President may determine and, on the appointment of Additional Judge or Judges, under this section or under subsection (6) of section 43 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the number of Judges shall stand increased accordingly for the relevant period."

34. Sardar Rafique Mahmood Khan submitted that the Ordinance was promulgated on 1.9‑1‑1991 and was withdrawn on 31‑1‑1991 but the date on which appointments under dispute. were made the Ordinance was in existence, therefore, this amended provision as then in force provided a legal cover to the appointments under reference. This provision was not pressed in service before the High Court because it does not find any mention in the judgment under appeal. Although this point has now been raised in the memorandum of appeal yet it has not been stated in the memorandum of appeal that this point was argued before the High Court and has not been taken notice of. Since it is a pure question of law and has been duly raised in the memorandum of appeal as well as the concise statement there is justification for allowing it to be raised for the first time in this Court.

35. This provision, when in force, did lay down that the President could appoint an Additional Judge if it is intended to increase the number of Judges but this provision being a sub‑Constitutional law is repugnant to subsection (6) of section 43 of the Constitution Act and is a nullity. The concept of an Additional Judge is contained in subsection (6) of section 43 of the Constitution Act and has been already eleborately discussed. According to subsection (6) mentioned above an Additional Judge can be appointed if a Judge is absent or unable to perform his functions. The Constitution Act lays down the situation in which Additional Judge can be appointed while the aforementioned amendment introduced a different situation when an Additional Judge could be appointed. An Additional Judge of High Court is a creation of the Constitution Act and a sub‑Constitutional provision cannot create another category of Additional Judges as was attempted to be done by the Ordinance mentioned above. The Ordinance was an obvious attempt to amend the Constitution Act and it is unfortunate that it should have been promulgated at all. It is satisfying to note that it was withdrawn. The Ordinance being ultra vires of the Constitution shall be deemed to be non‑existent ab initio.

36. As a consequence of the analysis made above I would dismiss the appeal filed by Mr. Muhammad Siddique Farooqi and uphold the view of the High Court challenged by him.

37. Now I take up the appeal filed by Mr. Ghulam Mustafa Mughal and Mr. Zubair Abdul Malik. By this appeal they have challenged the dismissal of the writ petition filed by them on the ground that subsection (5) of section 44 of the Constitution Act created a bar and a quo warranto writ could not issue in spite of the fact that the appointment of the two Additional Judges was not in conformity with the Constitutional provisions. In order to appreciate the basis of this verdict it would be necessary that the relevant provisions of section 44 may be reproduced:‑‑‑

38. "44.‑‑(1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law.

(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law‑‑‑

(a) on the application of any aggrieved party make an order‑‑

39. (i)

40. (ii)

(b) on the application of any person, make an order‑‑‑

(i) directing that a person in custody in Azad Jammu and Kashmir be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person holding or purporting to hold a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold that office; or

41. (c)

42. (3)

(4) .

(5) In this section, unless the context otherwise requires, `Person' includes anybody 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."

43. The view taken by the High Court, briefly stated, is that a writ of the nature of quo warranto as provided for in sub‑clause (ii) of clause (b) of section 44(2) can issue against a person but subsection (5) lays down that the word `person' does not include the Supreme Court and the‑High Court and a Court or Tribunal established under a law relating to the Defence Services. The High Court has held that if a writ of quo warranto issues to a Judge of the High Court it would be a writ against the High Court because "High Court" is synonymous with a "Judge of the High Court". The High Court dealing with this point, rather briefly, relied on the opinion of the two Judges of the Supreme Court of Pakistan in a divided judgment reported as `Abrar Hasan v. Government of Pakistan' PLD 1976 SC 315. In that judgment interpreting the corresponding provision in the Constitution of Pakistan Muhammad Yaqub Ali C.J. and Anwarul Haq, J.‑(as he then was) held that "High Court" and "Judge High Court" were interchangeable teams and that writ of quo warranto did not lie against the Judge of the High Court. In the same judgment the other two Judges Muhammad Gul, J. and Salahuddin, J. differed with this view and held that the terms "Judge" and "Court" often are used interchangeably as synonymous yet this does not obliterate the distinction between a Judge as an individual and Court as an institution. The two learned Judges therefore held that a writ of quo warranto could Issue‑ against a Judge of the High Court if his appointment was found invalid.

44. In the judgment under appeal the two passages from the judgment of Yaqub Ali, C.J., were quoted with approval. These passages may be usefully reproduced:‑‑‑

45. "It is relevant in this connection to bear in mind that totality of the jurisdiction conferred on a Nigh Court by Constitution and law is exercised by the individual !group of Judges sitting singly or in Benches. In this context each Judge is a High Court. That explains why orders, judgments and decrees passed and summons and warrants issued under the direction of as Judge are expressed in the name of the High Court and not in the name of the individual Judge. One may also refer to Article 201 of the (Constitution which lays down that any decision of the High Court shall, to the extent it decides a question of law or is based upon or enumerates a principle of law, is binding on all Courts subordinate to it. The, decision rendered by the Judge of a High Court thus carries the authority conferred by Constitution and law on the High Court and not the authority of an individual Judge. To my mind these provisions of the Constitution bring out clearly that the term High Courts and Supreme Court used in clause (5) of Article 199 includes Judges of these respective Courts. '

46. The policy of law that no writ will issue to a High Court and Supreme Court‑is based on sound principles. If one Judge of a High Court were to issue a writ to another Judge under Article 199, the Judge to whom the writ is issued, may in exercise of the same jurisdiction nullify the writ. This is the logical consequence of the fact that High Courts and their individual groups of Judges are invested with co‑ordinate jurisdiction."

47. Lastly, as I read the provisions of Article 199, they spell out that a writ will not issue from one Judge of a High Court to another Judge of the same Court. Article ,199(1) confers jurisdiction on High Courts to issue writs to person performing, within their territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local authority: A High Court cannot therefore issue a writ to a person performing functions in another province. This restriction applies equally in case of High Courts as the Judges who constitute these Courts perform their functions outside the territorial jurisdiction of each other. The exclusion of High Court from the definition of `person' is, therefore, not included to debar a High Court from issuing a write to other High Courts. This object is fully observed by the primary condition laid down in Article 199(1). What then is the purpose of clause (5) of Article 199. Obviously, not‑ to debar a High Court from issuing a writ to itself. It is too absurd to contemplate that a writ could ever issue from the `High Court of Lahore' to the `High Court of Lahore'. A more rational view is that clause (5) is intended to .debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants, under Article 199 as without lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection one should bear in mind large number of decisions given by High Courts in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation authorities, Custodian of Evacuee Property, Settlement authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Court to quash, under Article 199, judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude Judges from the term High Court and Supreme Court in clause (5) of Article 199.

48. I, however, do not mean to say that if a Judge has reached the age of superannuation or is otherwise not qualified to hold the office of a Judge of a superior Court, there is no remedy at law against him. His capacity to hold the office can be questioned in proper proceedings, but not by a writ under Article 199 of the Constitution. The judgment delivered by a Judge who is not qualified to hold the office may be brought before this Court on the ground that it is not a judgment delivered by the High Court or it may be challenged on the ground that the High Court is not properly constituted because a judgeship is vacant:'

49. This view was shared by Anwarul Haq, J., who wrote a separate note. The view of other two learned Judges Muhammad Gul, J. and Salahuddin, J. was not reproduced in the judgment under appeal. No reason was recorded as to why the views expressed by Yaqub Ali, C.J. and Anwarul Haq, J. were considered to be more weighty than the view taken by the other two learned Judges. When I compare the two views I find myself in agreement with the interpretation adopted by Muhammad Gul, J. and Salahuddin, J but perhaps more important is the fact that the difference of opinion in Pakistan Supreme Court has since been resolved and it has been held that writ of quo warranto lies to challenge the appointment of Judge of the High Court. This law was laid down in `Mr. Zulfikar Ali Bhutto v. The State' 1977 SCMR 514 by a eight member Bench. The judgment in that case was written by Mr. Justice Anwarul Haq, who had meanwhile become the Chief Justice of Pakistan. The learned Judge modified his earlier view expressed in Abrar Hassan's case and wrote the unanimous judgment. The facts were that Acting Chief Justice of the Lahore High Court (Mr. Justice Mushtaq Hussain) passed an order, on an application presented on behalf of the State, that the challan case against Mr. Zulfikar Ali Bhutto and others shall be transferred for trial on the original side of the High Court. For this purpose a Full Bench of 5 Judges, presided over by the learned Acting Chief Justice himself, 'Was also constituted. Thereupon a petition for leave to appeal was filed on behalf of Mr. Zulfikar Ali Bhutto and it was contended, inter alia, that the Lahore High Court was not properly constituted as there was no Chief Justice in office while Mr. Justice Mushtaq Hussain had not been appointed as Acting Chief Justice by any constitutional authority; even if Mr. Justice Mushtaq Hussain be deemed to have been validly appointed as Acting Chief Justice, he ceased to hold this appointment when he assumed charge as Chief Election Commissioner. On the basis of these and some other submissions it was prayed that it may be declared that Mr. Justice Mushtaq Hussain was not duly appointed as Acting Chief Justice and the Lahore High Court was not legally constituted, and further that being the Chief Election Commissioner, Mr. Justice Mushtaq Hussain was prohibited by the Constitution to hold the office of the Acting Chief Justice of the Lahore High Court. The petition was dismissed for different reasons, including the following:‑‑‑

50. "It will be seen that the question relating to the constitution of the Lahore High Court and the capacity of the learned Acting Chief Justice to act as such are indeed matters more appropriate for consideration by way of a quo warranto, rather than by way of a petition for special leave to appeal under Article 185 of the Constitution."

51. This judgment was not brought to the notice of the learned Judges in the High Court otherwise the learned Judges in all probability would have followed it. I say so with great respect that this judgment lays down the correct law. It contains a view which is totally different from that expressed by Yaqub Ali, C.J. in Abrar Hassan's case that instead of having recourse to writ of quo warrant) the proper course in such a situation is to challenge the judgment delivered by a Judge on the ground that it was not a judgment of a High Court or on the ground that the High Court is not properly constituted because a judgeship is vacant. In my considered opinion the view expressed by Muhammad Gul, J and Salahuddin, J. was the correct view. If an order or judgment of a Judge of High Court is challenged there can be no two views that what is being sought is a writ against the High Court because the order or judgment has been pronounced in exercise of the jurisdiction vested in the High Court and it is a situation in which Judge and the Court are inseparable. 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.

52. 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. Ghualm 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:‑‑

53. "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 law 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 alongwith 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 arc distinguishable both on facts and law, therefore, we refrain from quoting them in this order."

54. 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 "de facto 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 .uses 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:‑‑‑

55. "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 warranty 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."

56. 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 State 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.

57. In view of the foregoing discussion I 'am of the view that the appeal titled "Mr. Ghulam Mustafa Mughal and another v. Muhammad Siddique Farooqi and others: has to be accepted and I order accordingly. Consequently, I writ petition titled "Ghulam Mustafa Mughal and another v Azad Jammu and' Kashmir Government and others" shall stand accepted and writ of quo warranto would issue to the effect that Sardar Muhammad Sajawal Khan and Mr. Muhammad Siddique Farooqi were occupying the public office as Additional Judges of the High Court without authority of law,. In view of the questions of law involved in the case I would leave the parties to bear their own costs.

58. A.A./344/S.C.A. Appeal accepted.