2004 PLP 138 (YLR)

(2) Upon any application evidence may be given by affidavit, but the Court may, at the instance of other party, order the attendance for cross examination of the deponent in the Court unless he is exempted from personal appearance or the Court otherwise directs."

6. On the basis of the aforesaid application, once again Dr. Muhammad Bashir Goraya, through his counsel, tried to procrastinate and prolong the matter and requested the Court that the persons who deposed affidavits may be called in the Court to be cross‑examined. After hearing Mr. Mujib‑ur‑Rehman at some length and examining the provisions of Order VIII, rules 1 and 2 of the Supreme Court Rules, it is purely within the discretion of the Court to call a person for cross‑examination who deposed an affidavit. The Court is also vested with the power to exempt that person from personal appearance or it may direct otherwise. Rule 2 of Order VIII of the aforesaid Rules clearly postulates that discretion lies with the Court to call upon the deponents who deposed their affidavits for the purpose of cross‑examination but at the same time the Court is vested with the vast power. to pass an order otherwise.

7. Keeping in view the conduct of Dr. Muhammad Bashir Goraya who all along has been trying to procrastinate the matter and to prolong the case in order to avert the fate of his case, the application moved on his behalf under Order VIII, rules 1 and 4 of the AJ&K Supreme Court Rules stands rejected.

8. Now coming to the appeal which has been filed against the order of learned Registrar of this Court dated 3‑5‑2003, Mr. Mujib‑ur‑Rehman, the learned counsel for Dr. Muhammad Bashir Goraya, frankly conceded that there is no concept of transfer application before the superior judiciary. It is also conceded by the learned counsel that if at all some apprehension arises in the mind of a litigant that he would not get the fair trial of his case, he has to level the said allegation before the same Judge or should say it before the same Judge at an earliest opportunity that from him he apprehends that he would not get a fair and impartial trial of the case. The learned counsel conceded that the language used by his client is crude in nature and is not couched in happy words. Since his client was not represented properly, therefore, no mala fide could be attributed to him nor his intention seems to be scandalous or to lower down the prestige of the Court. The learned counsel contended that the question of reconstitution of Bench is based on the concept that justice should not only be done but it should be seen to have been done and even this is the code of conduct for the learned Judges of the superior Courts. The learned counsel in support of his contention placed reliance on a case reported as Syed Akhlaque Hussain v. Pakistan PLD 1969 SC 201 wherein it was observed that justice should not only be done but should manifestly be seen to be done. It was further observed at page . 205 as follows:‑‑ "It is true that this proposition has been generally acknowledged and given effect to not only in England and U.S.A. but in this Sub Continent too. The question that remains, however, to be considered is that interest in a judicial or quasi‑judicial proceeding does the law requite as sufficient to incapacitate a person from adjudicating on the ground of bias or appearance of bias. According to Mr. Akhlaque Hussain mere suspicion or reasonable suspicion of bias is sufficient to vitiate a decision." The learned counsel conceded that from the telephonic communication itself no apprehension normally arises as a Judge being a human being is not debarred from receiving any call from any person or to speak to a person on telephone but when the lis is pending before a Judge with regard to certain person or a litigant party, then in that eventuality if the telephonic call of that party or person is received then it certainly creates reasonable doubt in the mind of the litigant that there is a likelihood of the Judge being influenced from the opposite side. The learned counsel also contended that it is not necessary in an application for reconstitution of Bench to prove that the learned Judge war biased because to be biased to anybody is a mental condition for which actual proof is not possible as it relates to the mental conditions of a Judge. The learned counsel by concluding his arguments submitted that the learned Judge should himself retire from‑ hearing the case if a litigant is not reposing any confidence in him, even if the learned Judge be exceptionally honest and of highest professional integrity. The learned counsel in support of his contentions relied upon a case reported as M. H. Khundkar v. The State PLD 1966 SC 140 wherein it was observed as follows:‑‑ "But I confess, I am greatly surprised that the learned Chief Justice did not think it fit to assign the case to another Bench, as he very easily could have done, when circumstances were mentioned indicating that the litigant con cerned may have some reason for entertaining an apprehension that his case may not receive that dispassionate consideration which is expected from the highest Tribunal in the Province. I have no doubt that the learned Judges concerned were capable of taking a detached view of the case, despite those circumstances. But justice must not only be done but must be manifestly seen to be done, so that no taint of suspicion is harboured in the mind of a party who has occasion to seek redress at such high judicial level. I would, therefore, say that it was highly proper for the learned Judges to continue hearing the case after the embarrassing circumstances had been brought to their notice. " The other authorities cited by the learned counsel need not be discussed as they have no relevancy to the facts and circumstances of the case in hand. Last of all the learned counsel submitted that the prayer of his client for reconstitution of Bench may be accepted keeping in view the overall circumstances of the case.

9. Controverting the arguments raised by the learned counsel for Dr. Muhammad Bashir Goraya, Mr. Abdul Rashid Abbasi argued that the application for reconstitution of Bench has been filed with a view to scandalize the Court as well as the learned Judge of the Court which amounts to a clear and naked contempt of Supreme Court as visualized. under section 45 of the AJ&K Interim Constitution Act, 1974. He further maintained that it tends to interfere with and obstruct the process of dispensation of justice by the' Court and also tends to prejudice the determination of the matter by the Court. The application for reconstitution of Bench, according to the learned counsel, was filed with a view to prolong the matter with mala fide intention to derive undue and illegal benefits. According to the learned counsel it is pertinent to mention that the conduct of Dr. Muhammad Bashir Goraya throughout during the proceedings has been to get the case prolonged and delayed. First the case was got adjourned by him on 7‑11‑2002 on the ground that he wishes to engage Mr. S.M. Zafar, a senior Advocate from Pakistan, as counsel in the case and that the case may be adjourned after mid of December, 2002. The case was adjourned according to the wishes of Dr. Muhammad Bashir Goraya to 23‑12‑2002 but it was again got adjourned on the same request and. also by filing another application. The case was finally fixed by the Court for arguments on 4‑2‑2003 but on 4‑2‑2003 again a request for adjournment was made on behalf of Dr. Muhammad Bashir Goraya. The adjournment prayed for was granted by the Court. However, it was directed that written arguments may be submitted by the parties in the case by 28‑2‑2003. After the submission of written arguments by the parties, the judgment remained reserved and after the lapse of a period of about more than two months, when notice for pronouncement of judgment was issued by the Court, Dr. Muhammad Bashir Goraya came up with the application for reconstitution of Bench, but that too just a day before the date fixed for pronouncement of the judgment. This by itself indicates the clear and sheer mala fide and ulterior motives on his part without any probe or inquiry into. the matter. The learned counsel pressed into service the submission that the allegations leveled against the learned Judge are totally false, untrue and baseless which have been levelled with a view to scandalize and exploit the Court as well as the learned Judge of the Court. Three affidavits sworn by Sardar Muhammad Abdul Qayyum Khan, Sardar Attique Ahmed Khan and Sardar Khalique Ahmed Khan in this regard were also placed for rebuttal of allegations leveled in the application/appeal. The learned counsel in support of his contention placed reliance on the case reported as Ghulam Qasim v. Ghulam Hussain 1992 SCMR 140 and maintained that there is no concept of transfer application in the superior judiciary. In the aforesaid Authority it was held at page 175 as follows:‑‑ "However there appears to be a marked distinction in the approach on the question of bias between a case of a Judge of a subordinate Court and a case pertaining to a Judge of a superior Court; inasmuch as in the former case, the superior Courts do grant transfer application on the above ground in view of express provisions contained in Cr.P.C. and C.P.C. empowering transfer of cases, whereas in the latter case; the Supreme Court does not grant transfer application on the above ground for want of power as has been held by this Court in. the above case referred to hereinabove in sub‑para. (viii)." The learned counsel also vehemently argued that it was, the duty of Dr. Muhammad Bashir Goraya in the first instance to bring any apprehension, regarding the distrust on the learned Judge, before the same Judge and it was for the Judge to decide as to whether he wanted to be associated with the case or not. With regard to bias attributed to the learned Judge, it was contended by the learned counsel that it should have been attributed in the earliest opportunity before the same Judge, otherwise he becomes debarred to raise such a plea later on. In this regard reliance was. placed on the case reported as M. H. Khundkar v. The State PLD 1966 SC 140 wherein at page 169 it was observed as under:‑‑ (1) "It is open to a litigant to raise in the face of a Court an allegation of bias in that Court and this is true whether it may be a superior or a subordinate Court. If such a plea is not raised before the Court as soon as the facts on which it is based come to the knowledge of She litigant, he may find himself barred against relief under the provisions of Article 98 of the Constitution, in respect of the ultimate decision. The plea of bias involves criticism of a superior Court in point of its capacity to do justice, confidence in which is (a) vital to the proper functioning and even to the continuous existence of the judiciary as at present constituted and (b) essential therefore, to be public interest. Consequently, such an action brings .the agent within the range of the contempt jurisdiction unless it can be totally justified on factual grounds, 'the onus of establishing which lies exclusively on him. (3) Mere apprehension in the mind of a litigant, that he may not get justice, such as is based on inferences drawn from circumstantial indica tions, will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follow necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found it contempt." In another case titled Zulfiqar Ali Bhutto v. State 1977 SCMR 514 it was observed at page 517 in a following manner:‑ "It is well‑established that any objections in this behalf must be raised, before the Judge concerned and ordinarily the matter must be left to him to decide according to his conscious and circumstances of the case. The Supreme Court does not have any power of ordering transfer of a case from the file of a Judge of the High Court." The learned counsel further contended that the application for reconstitution of Bench being belated is liable to be dismissed on this score. In this regard he placed reliance on an authority of Supreme Court titled Zulfiqar Ali Bhutto v. The State PLD 1978 SC 125.

10. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record consisting of the application and appeal filed by Dr. Muhammad Bashir Goraya, the objections filed by Mr. Abdul Rashid Abbasi, the evidence produced by Dr. Muhammad Bashir Goraya and the affidavits in rebuttal produced by Mr. Abdul Rashid Abbasi, at the very outset it may be pointed out that Mr. Mujib‑ur- Rehman, the learned counsel for Dr. Muhammad Bashir Goraya, very wisely did not refer to the evidence produced by his client in support of his allegations simply for the reason that the evidence produced by his client is totally inconsistent and ins conflict with the original stand taken in his application/appeal as well as in his statements before the Court. So he simply read the statement of Dr. Muhammad Bashir Goraya but never referred to the statements of other witnesses.

11. In the statement of Dr. Muhammad Bashir Goraya which was recorded on 5‑5‑2003 he categorically stated that he has written in the application for reconstitution of Bench that Mr. Justice Kh. Muhammad Saeed had been meeting with Sardar Khalique Ahmed Khan, Sardar Attique Ahmed Khan and Sardar Muhammad Abdul Qayyum Khan, the alleged proprietors of Al‑Khair University. He stated that the meeting took place at P.W. D. Rest House, Mirpur but he was unable to take the name of servant of the Rest House who told him nor he could tell his name. He also stated that he could produce the telephone bill. The subsequent statement of Dr. Muhammad Bashir Goraya was recorded on 12‑5‑2003 for the reason that on that date he had promised to produce the telephone bill but while getting his statement recorded he stated that he cannot produce the telephone bill as the same is a secret document and in the same the names of other Judges are also mentioned. Dr. Muhammad Bashir Goraya also stated that directly Sardar Muhammad Abdul Qayyum Khan, Sardar Attique Ahmed Khan and Sardar Khalique Ahmed Khan did not talk to him rather one Bashirullah Abbasi had talked to him several times. Similarly one Manzoor Ahmed, who lives in the house of Sardar Abdul Qayyum Khan, had told him that Sardar Attique Ahmed Khan .had phoned to Mr. Justice Kh. Muhammad Saeed. This was told to him about 15/20 days ago in Muslim Law College.

12. The witness for Dr. Muhammad Bashir Goraya, namely, Obaid Hassan Butt, who is Assistant Registrar of Al Khair University, is to the effect that Sardar Khalique Ahmed had told him that he would not remain on his seat as very soon his chair will be outside the premises of the University. The witness stated that this was told to him about 4/5 days ago in his cabin where he sits. The witness further stated that it was told to him on 7th or 8th of May, 2003 that he would not remain on his seat. At the end of cross‑examination of the said witness, he stated that Sardar Khalique Ahmed had threatened him after 5th of May, 2003.

13. The other witness for Dr. Muhammad Bashir Goraya, namely Rashid Hameed, P.R.O. Al‑Khair University, stated that Sardar Khalique Ahmed Khan had come in the University about 20 to 22 days ago whereupon he told him that he would do his work. Sardar Khalique Ahmed Khan told him that how would he not do his work because after two or three days he will sit outside the University.

14. Amjad Ali Bhatti, Secretary to Vice‑Chancellor, Al‑Khair University, stated that in the mid of March, Sardar Khalique Ahmed Khan who usually comes to the University told him that the judgment has been drafted in their favour and only formality is to be fulfilled. This was told by him in the room where the witness was occupying his chair. He ‑Also took tea with the witness. The witness further stated that at that time there was nobody else. One Bashirullah Abbasi 10 to 15 days ago told him that the University in fact belongs to Dr. Muhammad Bashir Goraya and the previous judgment has been passed in his favour. He further told to witness that had we not tried to propagate about the first Judge as Qadiani then the judgment would not have been passed in favour of Dr. Muhammad Bashir Goraya.

15. This is the sum total of the evidence produced by Dr. Muhammad Bashir Goraya, in rebuttal of which affidavits were filed by Sardar Muhammad Abdul Qayyum Khan, Sardar, Attique Ahmed Khan, Sardar Khalique Ahmed Khan, Bashirullah Abbasi and Manzoor Ahmed Khan in which the allegations leveled by Dr. Muhammad Bashir Garaya and his witnesses have been rebutted. None of the witnesses produced by Dr. Muhammad Bashir Goraya supports his case to the extent that there had been any meeting between Mr. Justice Kh. Muhammad Saeed and Sardar Muhammad Abdul Qayyum Khan, Sardar Attique Ahmed Khan or Sardar Khalique Ahmed Khan. No one has deposed that they ever heard any telephonic call on behalf of Sardar Khalique Ahmed Khan or Sardar Muhammad Abdul Qayyum Khan to Justice Kh. Muhammad Saeed nor from the side of Justice Kh. Muhammad Saeed to Sardar Khalique Ahmed Khan or 'Sardar Muhammad Abdul Qayyum Khan. The evidence produced by Dr. Muhammad Bashir Goraya runs totally counter to the allegations levelled in his application/appeal for reconstitution of Bench. One of the witness of Dr. Muhammad Bashir Goraya, namely, Obaid Hassan Butt, has stated that Khalique Ahmed Khan met him after 5th of May, 2003 rather specifically mentioned the date that Sardar Khalique Ahmed Khan met him on 7th or 8th of May, 2003. This statement cannot ring true because the case was fixed for judgment on 5th of May, 2003. After 5th of May, 2003 there was no necessity of Sardar Khalique Ahmed Khan to go to the witness and to make him aware of the alleged conversation.

16. The evidence thus produced by Dr. Muhammad Bashir Goraya in support of his allegations is frivolous, unfounded and based on conjectures and surmises and totally hearsay which cannot be taken into consideration for reconstitution of Bench nor any ground has been suggested to reconstitute the Bench. It is sufficient in itself to be discarded as it is self contradictory and self‑destructive to the stand taken by Dr. Muhammad Bashir Goraya.

17. The case on 5th of May, 2003, was fixed for announcement of the judgment and only one day prior to announcement of judgment, Dr. Muhammad Bashir Goraya moved the application before the learned Registrar of this Court for reconstitution of Bench. This shows the conduct of Dr. Muhammad Bashir Goraya and his attitude which was so reprehensive and undesirable that the application was rightly not entertained by the Registrar. It has been pointed out by both the learned counsel for the parties that there is hardly any concept of transfer of case from one Judge on superior Court to another or to insist upon the reconstitution of the Bench unless the Judge himself decides to do so for certain reasons. Dr. Muhammad Bashir Goraya has been influenced for the reasons which persuaded him to move the application are best known to him but one thing is clear that the application moved by him for reconstitution of bench is not only mala fide but is belated and afterthought of this be the position then every litigant whose case because of its inherent defects is likely to fail, will come forward and knock at the door of the Court at the end of day for the reconstitution of the bench and this will amount to an unending precedent which is neither desirable nor fair or proper. The language used by Dr. Muhammad Bashir Goraya in his application for reconstitution of bench and in his statements is crude, scandalous and indicative of scandalizing the authority of the Court and to lower down its prestige in the eye of law. In these circumstances even if the application for initiating contempt of Court proceedings had not been moved by Mr. Abdul Rashid Abbasi, this Court should have itself initiated the contempt proceedings against Dr. Muhammad Bashir Goraya.

18. In the light of what has been stated above, finding no force in the application for reconstitution of bench and the same being frivolous, baseless and unfounded is hereby rejected. Dr. Muhammad Bashir Goraya is also imposed costs of Rs.5,000 for moving such a baseless and frivolous application. With the aforesaid observations the appeal against the order of learned Registrar of this Court dated 3‑5‑2003 stands disposed of accordingly. M.B.A./380/AJK(SC) Order accordingly.