P L D 1978 Supreme Court 125 (PLP)

(a) that I should not sit on the Bench of the Supreme Court of Pakistan which is to commence the Bearing of his appeal from the 20th of May 1978 ; and (b) that I should not select Judges for that purpose, but let the full Court, including the ad hoc Judges, hear the appeal, as was done by the Court in hearing Begum Nusrat Bhutto's petition challenging the validity of the imposition of Martial Law.

6. In support of these two prayers, he has listed the following reasons (i) that I resented the Constitution Sixth Amendment made by the Parliament under the appellant's leadership of the House, whereby my predecessor got an extension in the term of his office, and my promotion to the office of Chief Justice of Pakistan got consequently delayed ; (ii) that in the judgment of the Court in the Begum Nusrat Bhutto's case, while holding that the 1973 Constitution is still the supreme law of the land, I have given arbitrary powers to General Ziaul Haq to rule the country for an indefinite period, including the power to amend the Constitution, which I found necessary to do, as he had nullified the Sixth Amendment to pave the way for my appointment as Chieg Justice ; (iii) that before my appointment as Chief Justice the Judges of the Supreme Court had declined to take the oath as prescribed by the Chief Martial Law Administrator, but on my assumption .of office all the Judges immediately agreed to take the new oath ordered by the General ; . (iv) that I have been critical of his administration for making amendments in the Constitution, thus showing my deep resentment against him, as evidenced by my speeches at the time of the Full Court Reference on the assumption of my present office, oil the occasion of the Fourth Jurists Conference held in Lahore ~ in December 1977, and while addressing the District and High Court Bar Associations of Karachi on the 23rd and 24th of January 1978 ; (v) that I and Mr. Justice Mushtaq Hussain, the Chief Justice of the Lahore High Court, have been close friends for many years, and both are zealously collaborating with the Martial Law Regime ; and (vi) that while his appeal was pending before the Supreme Court, I' did not consider it indiscreet or embarrassing to accept General Ziaul Haq s offer to appoint me as the Acting President of Pakistan, thus actively identifying myself fully with the Executive, and merging, albeit temporarily, the Executive and the Judicial Organs of the State.

7. It is not appropriate that a Judge should enter into a controversy with a party to a cause pending before the Court, but it is nevertheless A necessary that misleading and incorrect statements and misconceived objections should be corrected, so that the whole matter can be .seen in its proper perspective. I will accordingly briefly deal with each of the points raised by the appellant. 8. (i) It is indeed correct that by the Sixth Amendment to the Constitution the term of office of my predecessor was sought to be extended by nearly four years, but there was no occasion for me to resent the same, as I was informed, soon after the passing of the amendment, by no less a person than the then Attorney‑General for Pakistan, viz. Mr. Yahya Bakhtiar, who is now the Senior counsel for Mr. Bhutto, that this amendment was not directed against me in any manner, and that, in fact. I would also get a similar extension under it when I am appointed to succeed Mr. Justice Yaqub Ali Khan as the Chief Justice of Pakistan. On all possible occasions Mr. Bhutto and his Attorney‑General let it be known that being the Senior‑most Judge of the Supreme Court, I was to be its next Chief Justice, and would be able to serve up to the age of nearly 69 years as against the prescribed superannuation age of 65 years applicable in the case of associate Judges of the Supreme Court. It is, therefore, a mis conception on the part of the appellant to say that I resented the Sixth Amendment; on the contrary I willingly continued to serve under my predecessor who was my senior both in age and service as a Judge. (ii) (a) Mr. Bhutto has himself stated in the application under considera tion that Begum Nusrat Bhutto's case challenging the validity of Martial Law was heard by the Full Court of nine Judges. It is, therefore, deliberately misleading statement to assert that in that case I have personally given certain powers to General Ziaul Haq. That was a unanimous judgment of the Full Court, delivered after hearing lengthy arguments from both sides, and setting forth our detailed reasons for validating the B imposition of Martial Law on the doctrine of necessity. It was, I believe, for the first time that a Chief Martial Law Administrator, in active control of the machinery of Government, was declared to be subject to the power of judicial review vesting in the superior Courts of the country under the existing Constitution. In any case, if the appellant's inferences about this judgment are to be accepted, then the whole Court would stand disqualified from hearing the present appeal. (b) As to the repeal of the Sixth Amendment, I was informed by the learned Attorney‑General, Mr. Shadfuddin Pirzada, in the presence of Mr I Yahya Bakhtiar, that in the draft accord under negotiation‑ between Mr.l Bhutto and the, opposition leaders of the Pakistan National Alliance, it was agreed that most of the constitutional amendments, including the Sixth, which had 'a bearing on the functioning and jurisdiction of the superior) Courts, would be repealed before the holding of fresh elections. In these circumstances, it is a distortion of facts to suggest that General Ziaul Haq did me any favour by repealing the Sixth Amendment. Even Mr Bhutto . would have done the'same in terms of the draft accord, if the situation had not taken a different turn. (iii) I am not aware of any order made. by the Chief Martial Law Administrator before my appointment as Chief Justice on the 22nd of September 1977, prescribing a new oath for the Judges of the Supreme Court. . There was thus no occasion for the Judges to decline to take any. such oath, nor was there any need for me to persuade any of my colleagues to take the oath when it was prescribed. All of us felt that the new oath made no difference to our ability and obligation to do justice without fear or favour. In this behalf, it would be instructive to reproduce here a passage from the judgment in Begun Nusrat Bhutto's case (PLD1977SC657) :‑ "Mr. Brohi as well as Mr. Sharifuddin Pirzada were also asked to address the Court on the possible effect and implications of the new oath of office administered to the Judges of the Supreme Court and the High Courts after the imposition of Martial Law. They both stated that, in their view, the new oath has not in any manner restricted the independence of the superior judiciary, nor affected their obligation to perform their judicial functions according to law; it only indicates that the superior judiciary, like the rest of the country, has accepted the fact, which is even otherwise also evident, that on the 5th of July 1977, a radical transformation took place in the pre‑existing Legal Order. Both the learned counsel are "greed, and Mr. Yahya Bakhtiar, learned counsel for the petitioner, joins them, that the taking of the fresh oath by the Judges of this Court does not in any way pre clude them from examining the question of the validity of the new Legal Order and decide the same in accordance with their conscience and the law." This is therefore a meaningless objection, having no relevance to the question of my capacity to hear the present appeal. (iv) It is correct that in the speeches referred to by the appellant I was critical of the constitutional amendments made by Mr. Bhutto's administra tion, as they had the effect of encroaching upon the powers and jurisdiction. of the superior Courts of Pakistan, but three things must be realised in this behalf‑ (a) the amendments were widely ‑ condemned by legal and political circles throughout Pakistan even at the time they were made, and it was for this reason that in the draft accord with the P. N. A. leaders, Mr. Bhutto was obliged to agree to repeal them ; (b) my remarks were made generally in response to addresses and speeches made on these occasions by the elected leaders of the Bar Associations, who pointedly referred to these amendments while expressing satisfaction on my appointment as Chief Jdstice ; and (c) criticism of these constitutional amendments cannot be regarded by any reasonable mind as amounting to personal bias against the appellant in a criminal case involving his life and liberty." . (v) (a) I am surprised that my supposed friendship with the learned Chief Justice of the Lahore High Court should be a cause for any apprehen sion in the appellant's mind: I have been in the Judiciary for more than twenty‑one years, and it ‑is a matter of great satisfaction for me that most or the Senior. Judges in Pakistan are my personal friends, bound by fraternal ties of shared values and ideals, but this personal regard has never prevented me‑ from doing my duty as an appellate Judge. Mr. Justice Mushtaq Hussain E is no exception. It yvould be a great tragedy, indeed, if the work of ari appellate Judge should necessarily require him to sever all bonds of association and regard with Judges of the Courts from whose judgments he has to hear appeals. , (b) The remark that Mr. Justice Mushtaq Hussain and I are both zealously collaborating with Martial Law is not only uncalled for but mischievous, apparently intended to malign both the Courts over which wet have the honour to preside. The Judiciary in Pakistan has always endeavoured to perform its functions according to its conscience and the law, and the present times are no exception. The actions of Martial Law authorities have been subjected to judicial review under the recent judgment of my Court, and relief has been granted to the citizens both by the Lahore High Court and the Supreme Court in innumerable cases arising under the Martial Law. In any case, the present appeal before the Supreme Court has arisen under the ordinary criminal law of the land, out of a case registered by a private citizen in 1974. It is highly tendentious and misconceived to make a baseless insinuation implying that the Judges of the High Court and the Supreme Court will be influenced by their respective Chief Justices and the Martial Law authorities to deviate from the path of justice and rectitude. (vi) (a) Finally, Mr. Bhutto has chosen to take objection to my having acted as President of Pakistan during the absence abroad of the. President for medical check‑up for about two weeks. He seems to think that this was also a favour done to me by General Ziaul Haq. On the contrary the true position is otherwise. The President needed to go abroad, but was facing a difficulty owing to the fact that the Chairman of the Senate and the Speaker of the National Assembly, who could have acted as President under. Article 49 of the Constitution, were not in position. I was therefore approached, as being next in the warrant of precedence, and I agreed as it was indeed a case of necessity. As the appellant well knows, the President is only a constitutional head of State. (b) In so agreeing I was following the noble precedents of two distingui shed Chief Justices of Pakistan, viz. Mr. Justice Sir Abdur Rashid, and Mr. Justice Mohammad Monir, both of whom acted as Governor‑General of Pakistan for varying periods during their tenures as Chief Justice o Pakistan. (c) It is incorrect to say that I combined in myself the offices of the President and Chief Justice during these two weeks, as on my express proposal the Senior‑most Judge of the Supreme Court, viz. Mr. Justice Muhamma Akram, was appointed as the Acting Chief Justice of Pakistan for that period, and functioned as the effective head of the Judiciary. (d) This arrangement was in contrast to the arrangements ordered by Mr. Bhutto when he appointed the Chief Justices of Sind, Punjab and the N.‑W. F. P. as Acting Governors for varying periods, but refused to appoint Acting Chief Justices for the respective High Courts, in spite of advice in this behalf by the then Chief Justice of Pakistan, thus compelling the same person to simultaneously function as the active head of the provincial Executive and Judiciary.

9. It will thus be seen that the objections raised by Mr. Bhutto to my presiding over the Bench, which is to hear his appeal, are either misconceived or incorrect. They have no substance in fact, and do not disclose any personal bias on my part, such as would disqualify me from hearing this case.

10. In the recent case of Regina v. Camborne Justices and another, Ex parte : Pearce ((1955) 1 Q B 41), Slade, J. has said "In the judgment of this Court the right test is that prescribed by Blackburn, J, viz. that to disqualify a person from acting in a Judicial or quasi‑Judical capacity upon the ground of interest (other than pecuniary or proprietary) in the subject‑matter of the proceedings, a real likelihood of bias must be shown." The learned Judge has then observed "While endorsing and fully maintaining the integrity of the principle re‑asserted by Lord Hewart viz., that it is of fundamental importance that justice should not only be done, but should manifestly be seen to be done, this Court feels that the continued citation of it in cases to which‑it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done."

11. These views were approved and adopted by this Court in the cases of Syed Akhlaque Husain v. Pakistan (P L D 1968 S C 201), the President v. Mr. Justice Shaukat All (P L D 1971 S C 585) and more recently in Islamic Republic of Pakistan v. Abdul Wall Khan (P L D 1976 S C 57). In all these cases objections as to bias were repelled, and the Judges concerned did not feel disqualified to sit on the relevant Benches on the H view that "mere suspicion of bias, even if it is not unreasonable, is not sufficient to render a decision void. A real likelihood of bias must be established."

12. I must also take note of the fact that after assuming the office of Chief Justice of Pakistan I had occasion to deal with a number of matters involving this appellant, viz. Begum Nusrat Bhutto's case (P L D 1977 S C 657), his several petitions for leave to appeal against the judgments of the Lahore High Court, particularly the cases Zulfbsar Ali Bhutto v. The State (1977 S C M R 514), and Zulfikar Ali Bhutto v. The State (P L D 1978 S C 40) and his miscellaneous applications touching this very appeal. In all these matters, no indication was given at any stage by Mr. Bhutto or his counsel that they had no confidence in my capacity to do justice to him. He personally appeared before the Court in the first mentioned case, an was heard by us for several hours, and had no cause for complaint, The present objections are therefore indeed highly belated and the result of an afterthought, as suggested by the learned Attorney‑General.

13. One other important aspect may also be mentioned. The appellant not only wants me not to sit on this Bench, but also wants me to refrain from nominating the Judges for hearing this case. Under the Constitution and the law regulating the practice of the Supreme Court, it is not only the privilege but the duty and obligation of the Chief Justice to personally preside .l over all important cases, and to nominate Judges for hearing cases which come up before the Court. No person has the right to ask me to abdicate this responsibility, nor has he the right to demand a Bench of his own choice. This would be contrary to the well‑established norms regulation the functioning of the superior Courts of this country. Any objection, if raised, must be left to be decided according to my conscience and sense of duty in the light of all the surrounding circumstances of the case, including any possible repercussions on the capacity of my other colleagues to continue on the Bench if similar objections are raised against some of them as the appeal proceeds.

14. For all these reasons, I have decided to overrule the objections raised by the appellant, as they are altogether misconceived and ill‑founded. " I have not the slightest bias or prejudice against the appellant. I have been in public service for the last thirty‑nine years, out of which more than twenty one years have been spent in the Judiciary. I would not have the least hesitation to withdraw if I felt that I would not be able to act in this case according to the dictates of my conscience and the oath which I have taken to do justice without fear or favour, affection or ill‑will.

15. In view of the nature and importance of the present case, I have further decided that it shall be heard by the Full Court, comprising all the nine Judges, including myself. s. A. H. Petition rejected.