2014 P Cr (PLP)

Through this order we are disposing of Criminal Miscellaneous Application No.3 of 2013 whereby the applicant (accused) sought a declaration to the effect that the action taken against the accused was prompted by the Prime Minister Muhammad Nawaz Sharif and the former Chief Justice of Pakistan Iftikhar Muhammad Chaudhry, who were inimical to him and therefore, the action was illegal, void, ab initio.

2. To support the contentions taken in the application Mr. Anwar Mansoor Khan made the following submissions:-- (a) The Federal Government, as defined in Article 90(1) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) consists of the Prime Minister and the Federal Ministers, therefore there must be a collective decision on their part, but the decision to file the present complaint was solely taken by the Prime Minister, thus the statutory requirement of section 4(1) of the Criminal Law Amendment (Special Court) Act, 1976 was not fulfilled. (b) The complaint was not filed by a competent person within the meaning of section 3 of the High Treason (Punishment) Act, 1973. (c) There was no requirement of consultation with the Chief Justice of Pakistan in the process of formation of a Special Court and selection of judges under the law governing the matter, and the violation of the statutory provisions made the entire process of no legal effect. (d) The Notification dated 20-11-2013 has been issued by an incompetent person therefore, failed to fulfil the legal requirement. (e) The members of the Court are biased and due to existence of certain factors may under compulsion decide the case against the accused, therefore, the judges may recuse themselves from hearing the case. (f) The fundamental rights enshrined in Articles 4 and 10-A of the Constitution inure to the benefit of all the citizens, therefore, an act in violation thereof would be of no legal consequence. (g) The Prime Minister and the then Chief Justice of Pakistan were inimical towards the accused which resulted in initiating the instant proceedings, therefore, the act on their part was biased and tainted with malice. (h) The accused has been singled out to face the instant proceedings leaving the remaining persons, who were with the accused in the consultative process and the intent behind initiating the present proceedings is tainted with malice. (i) The amendment in the Constitution was later in time to include the act alleged against the accused, committed earlier, therefore, not applicable in the instant case as having no retrospective effect. (j) An act required by law to be done in a particular manner then it is to be done in that manner and no other.

3. In support of his contentions Mr. Anwar Mansoor Khan placed reliance on the unreported judgment of the Supreme Court of India titled State of Punjab v. Davinder Pal Singh Bhullar and cases reported in 1999 All ER 577, (2000) 1 All ER 65, AIR 1998 SC 2050, (2010) 10 SCC 539, AIR 1987 SC 2386, (2011) 8 SCC 380, 1994 (6) SCC 19, AIR 1952 SC 405, 2013 SCMR 1683, PLD 2009 SC 879, PLD 1989 Karachi 404, PLD 1993 SC 341, 2006 (1) All ER 967, 2007 SCMR 1086, 2007 SCMR 307, PLD 2013 SC 255, PLD 2005 SC 842, 2011 PLC (C.S.) 419, 2010 PLC (C.S.) 961, PLD 2013 SC 501, 1993 (2) All ER 724, 2002 (1) All ER 465, 2004 (1) All ER 187, 2003 SCMR 104, 2011 PLC (C.S.) 1130, 2004 PLC (C.S.) 378, PLD 1965 SC 90, PLD 2005 SC 719, 1999 PCr.LJ 166, 1990 MLD 389, 1998 SCMR 115, 2000 YLR 2655, PLD 2003 Lahore 493, 2010 CLD 935, PLD 1999 Lahore 372 and 2011 SCMR 408.

4. In the written reply the application was contested on merit and also its maintainability was questioned. Mr. Muhammad Akram Sheikh in addition to the written submissions contended that:-- (a) The Prime Minister under Article 92 of the Constitution can either act directly or through a Federal Minister to exercise the executive authority of the Federation. (b) The Rules of Business 1973 were framed as required by Article 99(3) of the Constitution. (c) Rule 16 of the Rules of Business, 1973 specified the cases required to be placed before the Cabinet and the case in hand is not covered under the said Rule, therefore, the approval of the Cabinet or the Prime Minister was not required to initiate the process. (d) The investigation and prosecution of the cases listed in the Schedule appended to the Federal Investigation Agency Act 1974, includes the offences punishable under the High Treason (Punishment) Act 1973, and the entry at Serial No.32 item No.18 of the Schedule-II of the Rules of Business 1973, the investigation and prosecution of the cases lies within the domain of the Interior Division hence no illegality was committed. (e) The Secretary, Interior Division was authorised to file the complaint on behalf of the Federal Government by virtue of S.R.O.1234(1)/94 dated 29-12-1994, therefore the complaint was competently filed. (f) The Notification dated 20-11-2013 was issued by the Law, Justice and Human Rights Division on basis of the powers available under the Rules of Business, 1973 i.e. entry at Serial No.7 of item No.21 of the Second Schedule of the Rules of Business.

5. In support of his contentions Mr. Muhammad Akram Sheikh placed reliance on the cases reported in 2013 SCMR 1683, PLD 2000 SC 869, PLD 2009 SC 879, PLD 1996 Lahore 542, PLD 1998 SC 1445, PLD 1993 SC 341, PLD 1999 SC 504, PLD 1989 Karachi 404, 1997 (4) ALT 220, PLD 2013 SC 501, PLD 1993 SC 473, PLD 1985 Lahore 258, PLD 1992 SC 492, 2010 SCMR 1301, PLD 2011 Lahore 382, PLD 2010 SC 61, PLD 2013 SC 1, PLD 1989 SC 689, PLD 2001 SC 568 and PLD 1976 SC 57. (I) Maintainability of the Complaint

6. Mr. Anwar Mansoor Khan first read section 3 of the High Treason (Punishment) Act, 1973 (hereinafter the Act 1973) which provides that no court shall take cognizance of any offence punishable under the said Act except upon a written complaint made by a person authorized by the Federal Government in this behalf. He then read section 5(1) of the Criminal Law Amendment (Special Court) Act, 1976 which provides that the Federal Government shall forward the complaint to the Special Court for prosecution. Article 90(1) of the Constitution was referred and it was contented that it defines the Federal Government to be the Prime Minister and the Federal Ministers only. After reading these provisions of the law and the Constitution it was submitted that the Federal Government as defined in Article 90(1) consists of the Prime Minister and the Federal Ministers hence there had to be a collective decision on their part, but in contravention thereof the decision to file the present complaint was taken solely by the Prime Minister without consulting the Federal Ministers, therefore, the statutory requirement was not fulfilled.

7. To appreciate the arguments of Mr. Anwar Mansoor Khan it would be necessary to ascertain in what context the phrase Federal Government is used in Article 90(1) and (2) of the Constitution. The term Federal Government is not defined in the Constitution nor in the statutes i.e. the High Treason (Punishment) Act 1973 and the Criminal Law Amendment (Special Court) Act 1976 and therefore to ascertain its meaning it would be necessary to interpret Article 90(1) and (2) of the Constitution which reads as follows:--

90. The Federal Government.

(1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the chief executive of the Federation. (2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federation Ministers.]

8. Article 90(1) of the Constitution provides that the executive authority of the Federation shall be exercised by the Federal Government consisting of the Prime Minister and the Federal Ministers through the Prime Minister, being the chief executive of the Federation. The Federal Ministers are not empowered to exercise the executive authority of the Federation on their own but only through the Prime Minister. It is for this reason that Article 90(2) gives the Prime Minister a discretion to either act directly or through the Federal Ministers. The Prime Minister is empowered to exercise the executive authority of the Federation all by himself or he may assign any of his functions to the Federal-Ministers. The power of the Prime Minister to delegate his authority to the Federal Ministers makes them also part of the executive authority of the Federation along with the Prime Minister.

9. Sub-Article (1) of Article 99 of the Constitution provides that the executive actions of the Federal Government shall be taken in the name of the President. Sub-Article (2) provides for the framing of rules with the purpose to specify the manner in which orders and instruments made and executed in the name of President shall be authenticated. Article 99(3) enables the Federal Government to frame rules for allocation and transaction of its business. In exercise of the powers contained in Article 99(3), the Federal Government framed the Rules of Business, 1973. The term business is defined in Rule 2(i)(iii) of the Rules as "all work done by the Federal Government."

10. No doubt Article 90(1) of the Constitution stipulates that the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers through the Prime Minister but at the same time Article 99(3) empowers the Federal Government to make rules for the allocation and transaction of its business. This Article clearly provides that the executive authority of the Federation i.e. the Prime Minister and the Federal Ministers, apart from taking direct decisions collectively, shall make rules to allocate and transact the business of the Federal Government. Rule 3 of the Rules of Business pertains to the allocation of business to the Ministries and the Divisions, while Rule 5 pertains to transacting the business of the Federal Government. The scope of Rules 3 and 5 is further elaborated in the Schedule-I and II appended to the Rules of Business. The said Rules and the Schedules specify the extent and the manner of allocation and transaction of the Business of the Federal Government. This allocation and transaction of the business of the Federal Government is in fact delegation of executive authority of the Federation from the Prime Minister to the Federal Minister who is entrusted with a certain portfolio. The Federal Minister through the Secretary of his Division transacts business of the Federation within the sphere circumscribed by the Rules of Business without seeking recourse to the executive authority of the Federation as provided by Article 90(1) of the Constitution. Once the executive authority of the Federation delegates some of its authority to a Minister, the concerned Ministry exercises delegated authority as if it is being exercised by the executing authority of the Federation. In doing so it cannot be said that the delegatees are arrogating to themselves the functions of the Federation. If the Prime Minister does not assign any portfolio to any of his Federal Ministers it will remains under his direct control as envisaged under Article 90(2) of the Constitution.

11. The above discussion makes it clear that if an action is taken on the basis of the delegated authority within the sphere of the Schedule II of the Rules of Business which specify they business allocated to the Divisions, this leaves no room for seeking further sanction from the Prime Minister. The Rules of Business 1973 were competently framed under Article 99(3) of the Constitution, therefore any act done within its ambit would not be considered to be in conflict with Article 90(1) of the Constitution nor would amount to usurping the executive authority of the Federation.

12. If the argument of Mr. Anwar Mansoor Khan that for filing of the complaint authorization ought to have come from the collective decision of the Federal Ministers and the Prime Minister, is accepted, then the provisions of Article 99(3) of the Constitution would become redundant and any business of the Federation if not placed before the Prime Minister and the Federal Ministers for their approval would be regarded as invalid. Such an interpretation of Article 90(1) would hamper the entire functioning of the Federal Government, and certainly Article 90(1) was not incorporated with such an intent.

13. In the case of Asghar Ali vs. the State reported in PLD 1985 Lahore 258 on an appeal preferred by two employees of WAPDA, who were convicted by the trial Court on bribery charges under the provisions of the Pakistan Criminal Law (Amendment) Act, 1958, the Lahore High Court decided a preliminary objection pertaining to prior sanction as mandated by section 6(5) of the Pakistan Criminal Law (Amendment) Act, 1958. Rustam S. Sidwa, J., as he then was, held that as no rules were framed at the relevant time under section 12(2)(a) of the Act 1958, therefore, the order of the Ministry of Interior passed under section 5(1) of the Federal Investigation Agency Act, 1974 to authorise an officer of the Federal Investigation Agency to initiate prosecution on behalf of the Federal Government can be pressed into service to legalize the sanction. The applicability of the Rules of Business 1973 was discussed in detail in paragraph 8 of the judgment reproduction would be helpful:-- "8. ..... The Rules of Business framed by the Federal Government under Articles 90 and 99 of the Pakistan Constitution provide for the working of the Federal Government in its various Divisions. Rule 2(vi) defines "Division" as a self-contained administrative unit responsible for the conduct of business of the Federal Government in a distinct and specified sphere and declared as such by the Federal Government. Rule (ix) defines "Government" as meaning the Federal Government. Rules 2(xiv) defines "Ministry" as meaning a Division or group of Divisions constituted as a Ministry. Rules 3(3) provides that the business of Government shall be distributed among the Divisions in the manner indicated in Schedule-II. Serial No.12 under Schedule-II covers the "Interior Division". The subjects assigned to it are listed thereunder and subject No. 6 provides "Ante-corruption laws, and PODO." Since Anti-corruption laws fall within the business of the Division of Interior, the "appropriate Government" for the purpose of section 6(5) of Act XL of 1958 is the Federal Government in the Interior Ministry."

14. In the above referred judgment the learned Judge held that the action taken by the Ministry of Interior was regarded as a decision of the Federal Government as the same was taken within the limits prescribed by law and the Rules of Business and the same is true for the case in hand.

15. We shall now examine the question whether the complaint was filed by a competent person. In the case in hand the complaint was filed by the Secretary Ministry of Interior, on the strength of S.R.O.1234(1)/94 issued on 29-12-1994, which is still in field and till date neither rescinded nor withdrawn, therefore, serves the requirement of section 3 of the High Treason (Punishment) Act 1973. Entry at Serial No.32, item No.18 of the Second Schedule of the Rules of Business clearly stipulates that the investigation and prosecution of the cases falling under the Schedule appended to the Federal Investigation Agency Act 1974, lie within the domain of the Interior Division. It is further to be noted that the Schedule appended to the Federal Investigation Agency Act 1974, also includes the offences punishable under the High Treason (Punishment) Act, 1973. In this view of the matter, the authority to prosecute a case filed under the High Treason (Punishment) Act, 1973 lies with the Interior Division and this authorization would be in addition to the authorization granted to the Secretary Ministry of Interior under the S.R.O.1234(1)/94 dated 29-12-1994. Furthermore, the entry at Serial No.7 of item No.21 of the Schedule-II of the Rules of Business provides that legal proceedings and litigation concerning the Federal Government is the function of the Ministry of Law, Justice and Human Rights Division, which can set in motion a legal action on behalf of the Federal Government and can authorize a person to prosecute a case under the High Treason (Punishment) Act, 1973. We are clear in our minds that as long as S.R.O.1234(1)/94 dated 29-12-1994 is in the field it is not necessary at all that every time when a complaint is to be filed, fresh authorization is required to be issued.

16. Mr. Anwar Mansoor Khan also urged that a complaint within the meaning of section 3 of the High Treason (Punishment) Act, 1973 has to be filed by a person authorized by the Federal Government and the word "person" appearing in the High Treason (Punishment) Act, 1973 in its application means a named individual only. This argument is misconceived. The word "person" can be both "individual specific" and "post specific". Thus an authority to file a complaint on behalf of the Federal Government can be given either to any person, irrespective of any particular post he holds, or to a person who for the time being holds a particular post. Where authorization is made "individual specific" as against "post specific" the authorized person as long he lives or till such time the authorization is withdrawn he would be regarded as an authorized person. And if the authorization is in favour of a person who for the time being is holding a particular post it shall also be a valid authorization. An individual who by virtue of holding a particular post is authorized to file a complaint when ceases to hold such post, his successor to the office would automatically become authorized person until S.R.O.1234(1)/94 dated 29-12-1994 is rescinded, withdrawn, modified or the post itself is abolished.

17. In the instant case by virtue of S.R.O.1234(1)/94 dated 29-12-1994 the Secretary, Interior Division was authorized to file complaints against an accused for an offence of "high treason" as defined under Article 6 of the Constitution of Pakistan. It was thus "post specific" authorization, and would remain effective until it is rescinded, withdrawn or modified. The person who for the time being holds the post of the Secretary Interior Division would be regarded as a person authorised to file a complaint under section 3 of the High Treason (Punishment) Act, 1973. It is worth-mentioning here that the S.R.O.1234(1)/94 was issued in compliancy of the order of the honourable Supreme Court in the case reported in PLD 1993 SC 473 wherein it was held as follows:-- "Our enquiries made from the Federal Government reveal that though the Constitution was framed in 1973 and the Parliament also discharged its duty on 29-9-1973 by framing the requisite law on the subject, in terms of section 3 of the High Treason (Punishment) Act, 1973, the Federal Government has not so far designated the authorised person on whose complaint such an offence can be taken cognizance of by the Courts. The failure here is not of the Constitution, not of Parliament but of the executive Government and that too since 1973 of not giving a salutary Constitutional provision a meaningful content and operational mechanism, thereby frustrating it altogether."

18. From the above, it is evident that the Federal Government was to designate an authorised person on whose complaint the cognizance of the offence defined in the High Treason (Punishment) Act, 1973 was to be taken by the Special Court and this deficiency was fulfilled when S.R.O.1234(1)/94 was issued on 29-12-1994 which still holds the field and therefore, valid for the purpose of the present case as well.

19. Mr. Anwar Mansoor Khan next argued that the Prime Minister ought not to have written a letter to the Chief Justice of Pakistan to name the members of the Special Court when it was not required at all under the law. According to him, the Special Court was to be set up after consultation with the Cabinet by the Prime Minister and not with the then Chief Justice of Pakistan. He submitted that even if the Prime Minister had requested the then Chief Justice of Pakistan to nominate the Judges of the High Courts for setting up of the Special Court, the then Chief Justice of Pakistan ought not to have taken personal interest in the matter as by doing so a negative public perception has been created as he is inimical to the accused. Further, the Prime Minister ought to have chosen the Judges for the Special Court from the list of the serving Judges of the High Courts without seeking nominations from the then Chief Justice of Pakistan or for that matter from the Chief Justices of the High Courts.

20. Section 4 of the Criminal Law Amendment (Special Court) Act 1976 requires that the Special Court shall comprise of three serving Judges each of whom is a Judge of a High Court, therefore their nomination was to inevitably come from the Chief Justices of the High Courts concerned. This is exactly what has been done in this case. In this regard the Public Prosecutor during course of hearing placed on record letter dated 18-11-2013 of Law, Justice and Human Rights Division, its reply dated 19-11-2013 made by the Supreme Court of Pakistan, and Notification No.F.3(32)/2013-Sol-II dated 20-11-2013. These documents are reproduced below for the sake of convenience:-- Most Immediate By. Spl. Messanger, Government of Pakistan Ministry of Law, Justice and Human Rights Subject:- CONSTITUTION OF SPECIAL COURT UNDER THE CRIMINAL LAW AMENDMENT (SPECIAL COURT) ACT, 1976. Federal Government has decided to invoke the power-vested in it under section 4 of the Criminal Law Amendment (Special Court) Act, 1976 (Act No.XVII of 1976) to establish a special court to try General (R) Pervez Musharraf for various offences falling under section 2 of the High Treason (Punishment) Act, 1973 (Act LXVIII of 1973). (2) The law provides that the Special Court shall comprise of three serving Judges of High Courts. Since there are five High Courts and it would be difficult to nominate three Judges from these five High Courts for the Special Court, therefore, it would be appropriate that the apex court may nominate any three Judges from the High Courts for the said Special Court. (3) It is, therefore, requested that the instant matter may please be placed before the Hon'ble Chief Justice of Pakistan for the nomination of three Judges from the High Courts. It is also requested that out of three Judges, one may be nominated to be the President of the Special Court. The Special Court will function at Islamabad. (Zafarullah Khan) Secretary. The Registrar, Supreme Court of Pakistan, Supreme Court Building, Islamabad. Law, Justice and H.R. Division No.F.3(32)/2013-Sol.II (Vol.II), dt: 18-11-2013. .-.-.-.-.-.-.-.-. Phone: 051-9213770 Confidential Fax:051-9213452 No.Reg.1/SC-2013/SCP SUPREME COURT OF PAKISTAN Islamabad, the 19th November, 2013 Subject: Constitution of Special Court under the Criminal Law Amendment (Special Court) Act, 1976. Dear Secretary, Reference your letter No.F.3(32)/2013-Sol.II (Vol.II), dated 18-11-2013 on the above subject, I am directed to state that the request was placed before the Hon'ble Chief Justice of Pakistan, who directed to circulate the said letter to the Chief Justices of the five High Courts viz. High Court of Balochistan, High Court of Sindh, Lahore High Court, Peshawar High Court and Islamabad High Court, asking them to nominate a Judge of their respective Court. (2) Accordingly, the Chief Justices of High Courts forwarded nomination for the Special Court. These names were placed before the Hon'ble Chief Justice of Pakistan who was pleased to direct as follows:- "The Government of Pakistan vide letter dated 18-11-2013 requested to nominate three Judges of High Court to constitute a Special Court under section 4 of the Criminal Law Amendment (Special Court) Act 1976. In view of the principle of Independence of Judiciary, the Government has to avoid interference in the affairs of the Judiciary and for appointment of a Judge as Member of the Court or Tribunal, consultation with the respective Chief Justice is necessary. Therefore, the High Courts vide letter dated 18-11-2013 were asked to nominate a Judge from their respective High Court. In compliance, the Chief Justices have nominated the following learned Judges and have sent their service profile as well:-- (1) Justice Syeda Tahira Safdar, High Court of Balochistan. (2) Justice Noor-ul-Haq. N. Qureshi, Islamabad High Court. (3) Justice Muhammad Yawar Ali, Lahore High Court. (4) Justice Yahya Afridi, Peshawar High Court. (5) Justice Faisal Arab, High Court of Sindh. Under section 4 of the Act, the Federal Government has to notify in the official Gazette, names of three learned Judges of the High Court to constitute a Special Court. Therefore, the above panel of learned Judges from the High Courts be forwarded to the Secretary, Law and Justice Division, Government of Pakistan for notifying three out of them as members of the Special Court. So far as the appointment of the President of the Special Court is concerned, the senior most amongst the notified three learned Judges of the Special Court shall be deemed to be President of the Special Court." (3) Accordingly, the nominations received along with service profile of each nominee are forwarded to you for further necessary action. Enclosed as above. Yours sincerely, (Dr. Faqir Hussain) Registrar Mr. Zafarullah Khan, Secretary, Law, Justice and H.R. Division, Government of Pakistan Islamabad. .-.-.-.-.-.-.-.-. Government of Pakistan Ministry of Law, Justice and Human Rights.

Islamabad, the 20th November, 2013. NOTIFICATION No.F.3(32)/2013-Sol-II:- In exercise of the powers vested by section 4 of the Criminal Law Amendment (Special Court) Act, 1976 (Act No.XVII of 1976) the Federal Government in consultation with the honourable Chief Justice of Pakistan, as well as the honourable Chief Justices of five High Courts is pleased to constitute a Special Court for the trial of offence of High Treason under the High Treason (Punishment) Act, 1973 (Act No. LXVII of 1973) comprising of the following learned Judges of the High Courts:- (1) Justice Faisal Arab, High Court of Sindh (2) Justice Syeda Tahira Safdar, High Court of Balochistan (3) Justice Muhammad Yawar Ali, Lahore High Court (2) Justice Faisal Arab, High Court of Sindh being the Senior most Judge amongst them shall be the President of the Special Court. The place of sitting of the Special Court shall be at Islamabad. (Shoaib Mir) Joint Secretary

21. The contents of the above correspondence disclose that the names of the Judges were in fact nominated by their respective Chief Justices and not by the Chief Justice of Pakistan, and this was conveyed to the Ministry of Law, Justice and Human Rights for further proceeding with the matter. The Notification dated 20-11-2013 was issued after selecting the senior most three Judges from the five nominated Judges. The objection to the validity of the Notification dated 20-11-2013 is thus without any substance. (II) BIAS OF JUDGES

22. We shall now deal with the issue of disqualification of the Judges of this Court on the ground of bias.

23. Mr. Anwar Mansoor Khan argued that without attributing actual partiality or bias against any member of the Court there exist certain factors which may compel us to decide this case against the accused and therefore, to dispel such perception it was suggested that we may recuse ourselves from hearing this case. The factors, which according to Mr. Anwar Mansoor Khan, created reasonable apprehension of bias were as follows:-- (a) The senior member this Court (Faisal Arab, J.) did not take oath under the Provisional Constitution Order (PCO) of 2007 as he considered it to be violative of the Constitution and therefore, cannot remain impartial to decide the present complaint where one of the charges against the accused is issuance of the PCO of 2007. (b) That the Senior Member of this Bench (Faisal Arab, J.) as a Member of the Tribunal, constituted under section 14 of the Representations of the People Act 1976 dismissed Election Appeal No. 59 of 2013 filed by the accused vide order dated 15-4-2013, wherein the imposition of Proclamation of Emergency was the basis to disqualify the accused from contesting the general elections held in the year 2013. (c) That one of the members of this Court (Syeda Tahira Safdar, J.) was an active supporter of the former Chief Justice of Pakistan Mr. Iftikhar Muhammad Chaudhry and her father expired due to a heart attack during a rally held in support of the former Chief Justice. (d) That the then Chief Justice of the Supreme Court of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry ignored the written advice of the Chief Justice Lahore High Court, who while filling in the pro forma of Additional Judges serving in the Lahore High Court at the relevant time had stated in writing that Muhammad Yawar Ali, J. be dropped. The then Chief Justice of Pakistan prevailed for the reason that he was brother-in-law of Justice (Retired) Khalil-ur-Rehman Ramday in spite of the fact that the Chief Justice of the Lahore High Court wanted him (Muhammad Yawar Ali, J.) to be dropped. (e) That the former Chief Justice of Pakistan was particularly interested in suggesting the names of all the three members of this Court and the Prime Minister did not apply his mind independently in the selection of the judges, and simply forwarded the names so suggested to be notified in a mechanical mariner.

24. It is a fundamental right of a litigant to have his rights and obligations determined by an impartial court or a tribunal. A Judge must not have any interest of his own in the outcome of a case, criminal or civil, which he is to decide. In criminal matters if a Judge has any association or relationship either with the complainant or the accused, he should recuse himself from hearing such a case. The basic question in the determination of disqualification of a judge from hearing a case is whether any benefit or detriment, that is caused to a litigant, is also caused to the Judge. If the answer is in affirmative then the Judge should recuse himself from hearing the case. A personal friendship or animosity between Judge and any member of the public, involved in a case would be sufficient to connect his (Judge's) personal interest in the outcome of litigation and there would be a real apprehension of bias. If such an interest of a Judge comes to light or is timely pointed out then it raises a question mark on the credibility of the decision. A Judge should not act in his own cause and if he does, it would definitely undermine the public confidence in the integrity of the administration of justice. At the same time, it is the duty of a Judge that when a matter comes before him for a decision he must hear the case and should not recuse himself, if apparently there is no real apprehension of bias. If he does so, then he would avoid public obligation which is entrusted to him as a Judge and would cause delay in disposal of the proceedings. Such an approach would be regarded as undesirable. The main factor which is to be considered while deciding an application seeking disqualification is the existence of the possibility of bias rather than probability of bias.

25. In the case of R v Gough reported in [1993] 2 All ER 724 at 740 cited by Mr. Anwar Mansoor Khan, Lord Woolf suggested that the courts should hesitate long before creating any special category of automatic disqualification as the same will immediately create uncertainty as to what are the parameters of that category and what would be the test to be applied in a case of that category.

26. In the case of Locabail v Bayfield Properties reported in [2009] 1 All ER 65. at page 76, under paragraph 21 the following passage from South African jurisdiction in the case of President of the Republic of South Africa v South Africa Rugby Football Union was quoted with approval. ".......The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself/himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reason, was not or will not be impartial."

27. In the above referred case at page 77, under paragraph 22 the following quote from an Australian case was reproduced which will be of help in the instant case. It reads as "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, ... ...". It was further held in paragraph 24 of the judgment, "As a general rule, it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a Judge or Magistrate should not accede to an unfounded disqualification application".

28. One of the grounds for seeking disqualification of the senior member of this Court (Faisal Arab, J.) is based on the decision of the Election Tribunal dated 15-4-2013 in Election Appeal No.59 of 2013 authored by Munib Akhtar, J. sitting with one of us (Faisal Arab J.). The referred matter was decided in a summary proceedings arising from the order of the Returning Officer whereby the nomination papers of the accused were rejected. Further, the order dated 15-4-2013 was challenged by the accused in the Constitutional Petition No.1613 of 2013.

29. In a criminal or a civil matter several orders are passed which are either tentative in nature or are passed as an interim measure. This act of passing interim orders in civil cases by no means prevent a Judge from deciding a case after taking evidence. A Judge hearing an application for grant of concession of bail may reject it after holding that there is sufficient material on record to connect the accused with the commission of the crime, but this decision would not disqualify the Judge to record a final verdict on completion of trial on basis of the evidence that comes on record. It is a well-established principle of dispensation of justice that a criminal court shall not convict a person merely for the reason that some civil liability has been imposed on him in a civil matter already decided on same set of facts. This is also true for a civil court which cannot impose civil liability merely on account of a decision of a criminal court against the defendant for committing an act which is subject matter of a civil litigation. In each case both civil and criminal, decision is to be given on the basis of the evidence that comes on record, without being influenced by a decision given in the other version of the proceedings. The civil cases are decided on the principle of preporiderance of probabilities, whereas criminal liability is established on the principle of "existence of proof beyond reasonable doubt". This principle is discussed in detail by the honourable Supreme Court in the case of Ghulam Rasool v. Muhammad Waris Bismil reported in 1995 SCMR 500.

30. In view of the principles discussed hereinabove the plea of Judge's bias on the basis of his (Judge's) decision in a case previously heard and decided before a different forum is not sustainable. A matter decided within the legal framework would by itself not become a ground to plead bias against a Judge. A person while holding office of a Judge is bound to apply the law to the facts of the case before him without any fear or favour, affection or ill-will, and the judicial decision cannot be used to allege that he would be biased in any subsequent legal proceedings. In paragraph 12 of the judgment delivered by the Supreme Court of India in the case of State of Punjab v. Davinder Pal Singh Bhullar cited by Mr. Anwar Mansoor Khan, it was held "The Judicial process demands that a Judge moves within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that, on the whole Judges do, lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted".

31. Emphasizing the principle that the decision of a Judge within the legal framework cannot be made a ground of his disqualification, the honourable Supreme Court in the case of Islamic Republic of Pakistan v. Abdul Wali Khan, reported in PLD 1976 SC 57 at pages 81 to 83 held as follows:-- "So far as Mr. Justice Muhammad Gul is concerned, it is said that since he has already dealt with the question of the continuance of the detention of Mr. Abdul Wali Khan and some other leaders of the National Awami Party as Chairman of the Advisory Board, constituted under clause (iv) of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973, he has already dealt with the bulk of the material which form the basis for the banning of the Party as well and, therefore, he must be held to have made up his mind one way or the other and thus disqualified himself from sitting on the Bench. Even this, I must add, is a wholly untenable proposition and cannot be treated as a sufficient ground for disqualifying Mr. Justice Muhammad Gul. As pointed out by the learned editors of American Jurisprudence even at common law bias or prejudice on the part of a Judge, not the result of interest or relationship, is not supposed to exist, and generally it does not incapacitate or disqualify a Judge to try a case unless the Constitution or statute so provides"

(vide American Jurisprudence Vol. 30, page 774, paragraph 74). The basis of the disqualification, therefore, is personal bias or prejudice of such a nature as would necessarily render a Judge unable to exercise his functions impartially in a particular case, and this must be shown as a matter of fact and not merely as a matter of opinion. In the absence of any constitutional or statutory bar a Judge is not disqualified from sitting at a trial of a person merely because previously he participated in other legal proceedings against the same person, whether in the capacity of a Judge or of an Administrative Tribunal or official, it makes no difference. There is abundant authority from the American Jurisprudence to support the view that same person in another capacity does not necessarily disqualify him from sitting as a Judge at the trial of that person. In the present case, however, even this analogy is not apt, because before the Advisory Board, of which Mr. Justice Muhammad Gul is the Chairman, the question was as to whether the detention of Mr. Abdul Wali Khan and of some other members of the party should be continued or not. There was no question there at all of the banning of the Party. To say, therefore, that because the detention of some of the persons concerned has been extended a decision has already been taken with regard to the banning of the Party is neither factually nor legally correct. There is no allegation of any personal animosity or ill-will against Mr. Justice Muhammad Gul nor has it been shown that he has any personal interest in the matter of any kind at all, nor can it be said that the personal attitude of Mr. Justice Muhammad Gul is likely to be affected in this case because of any opinion that he may have formed as the Chairman of the Advisory Board. The decision of the questions now before us will have to be made on the basis of the evidence adduced in this Court and not on the basis of any material which might have been produced before the Advisory Board. Such an improper allegation of bias is, in my view, opposed to all canons of decency and was least to be expected from a person who started his peroration before the Court by professing his constant endeavour to preserve the rule of law and the highest respect for law. Cornelius, C.J. held in the case of M.H. Khondkar v. The State (PLD 1966 SC 140) that "it is open to a litigant to raise in the face of a Court an allegation or bias in that Court", whether it be a superior or a subordinate Court, but even he felt the necessity of recording the caution that "mere apprehension in the mind of a litigant that he may not get justice such as is based on inferences drawn from circumstantial indications, will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follows necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a superior Court and consequently should the proof to satisfy the requisite standard, he may be found in contempt". I subscribed to the same view then and do so even now. This Court has reaffirmed this view in its order passed on the 19th June, 1975, in this proceeding and I see no reason to depart therefrom as it appears to be based on the consensus of judicial opinion both in America and in Great Britain".

32. In Locabail's case at the end of paragraph 25 it is stated "The mere fact that a Judge, earlier in the same case or in a previous case, had commented on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection."

33. In view of the principles discussed hereinabove the plea of Judge's bias on the basis of his decision in a case previously heard and decided before a different forum is not sustainable.

34. As regards the apprehension of bias directed against one of us (Syeda Tahira Safdar, J.) during the argument it was pointed out to Mr. Anwar Mansoor Khan that she was appointed as a Civil Judge in the year 1982 vide Notification No.S.II-3(1)/79-S&GAD dated 22-4-1982 and has been continuously in service. During her judicial career she was promoted from Civil Judge to Senior Civil Judge and then to Additional District and Sessions Judge and the District and Sessions Judge. She was finally elevated as Judge of Balochistan High Court in the year 2009. Her father, who was a prominent Advocate of the Balochistan High Court as well as an Advocate of the Supreme Court of Pakistan, expired in the year 1980 and to pay respect a Full Court Reference was held by the then Chief Justice of Balochistan High Court Mr. Justice Khuda Bakhsh Marri. This reference is reported in the Journal Section of PLD 1980 Page

16. On being pointed out this factual position, Mr. Anwar Mansoor Khan stated at the bar that insofar as the objection of bias against Justice Syeda Tahira Safdar is concerned he withdraws the same and confines the objection of presumptive bias only against the remaining two members of this Court.

35. The objection of bias relating to the third member of the Court (Muhammad Yawar Ali, J.) was to the effect that while working as an Additional Judge of the Lahore High Court, in 2011, his name along with other Additional Judges of the Lahore High Court was to be placed before the Judicial Commission for the purpose of determining as to whether or not they be retained. While submitting the requisite pro forma before the Judicial Commission the Chief Justice of Lahore High Court recommended to drop his (Muhammad Yawar Ali, J.) name. In the process when the Judicial Commission met on 22-1-2011 the then Chief Justice of Pakistan Mr. Iftikhar Muhammad Chaudhry prevailed over everyone including the Chief Justice Lahore High Court and ensured that his name is not dropped for the sole reason that he is brother-in-law of Mr. Justice (Retired) Khalil-ur-Rehman Ramday, whom the then Chief Justice of Pakistan considered to be a very important ally. Due to this reason, the written advice of the Chief Justice Lahore High Court, was not heeded to and the tenure was extended purely on extraneous considerations.

36. The contention of the defence is misconceived in view of the fact that the entire matter was discussed at length by the august Supreme Court of Pakistan in the case of Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and reported in PLD 2011 Supreme Court

407. In the said judgment it was clearly stated as follows:-- "It must be stressed here that the Chief Justice of the Lahore High Court had also recommended these four Judges for extension while completing the pro forma discussed below, and had not at all made any recommendations for their names to be dropped" (Muhammad Yawar Ali, J. was one of the four Judges referred to above.)

37. A plain reading of the judgment referred above, makes it clear that the Chief Justice Lahore High Court never gave any advice in writing to drop the name of Muhammad Yawar Ali, J. and when the Judicial Commission met on 22-1-2011 by a unanimous decision recommended that ten (10) Additional Judges of Lahore High Court be dropped, Muhammad Yawar Ali, J. being not one of them. The decision taken by the Judicial Commission in the case of Muhammad Yawar Ali, J. was totally in line with the written advice of the then Chief Justice, Lahore High Court.

38. As discussed herein above, the objection as to disqualification of a Judge on the ground of bias would only be sustainable when it is demonstrated that the Judge has any interest in the proceedings by way of some gain or detriment in the outcome of the proceedings. Further the court is to see in terms of the possibility of bias rather than probability of bias based on mere suspicion. In the present case no animosity is attributed to any of the members of this Court against the accused rather only an apprehension of bias is alleged on certain grounds, which in fact do not attract any rule of disqualification. Doctrine of waiver.

39. In addition what has stated above, the doctrine of waiver is also attracted to the case in hand insofar as it relates to the objection of apprehension of bias against the senior member of this Court.

40. To plead real danger of bias against the senior member of this Court (Faisal Arab, J.) for the reason that he had not taken oath under the PCO of 2007 is not only based on mere suspicion but is also hit by the principle of waiver. This principle of waiver is discussed by the honourable Supreme Court in the case of Asad Ali v. Federation of Pakistan reported in PLD 1998 SC 161, and also in Locabail's case reported in [2000] 1 All ER

65. At page 71 paragraph 8 of Locabail's case the rule of bias was held to be "subject to the question of waiver or necessity".

41. As regards applicability of the principle of waiver in the present case, it would not be out of place to mention here that the accused neither raised the apprehension of bias before one of us (Faisal Arab J.) at the time of hearing of the Election Appeal No.59 of 2013, nor when the order was challenged in the constitutional jurisdiction in C.P.No.1613 of 2013, which was heard by a bench headed by a Judge who was also removed from the office on 3-11-2007. This objection as to Judge's bias was also not raised by the accused when he moved bail applications in the High Court of Sindh in other criminal matters, numbered as Criminal Bail Application No.262 of 2013 and Criminal Bail Application No.263 of 2013, decided on 23-12-2013. The decisions were given by a Bench headed by a Judge who was also removed from his office on 3-11-2007. It is for the first time that such objection is raised on the ground of PCO of 2007 in the proceedings before this Court, which is a subsequent stage in same context, therefore, the objection is no more available to the accused.

42. In paragraph 21 of Locabail case it has been held that even in cases which give rise to a real danger of bias it is generally desirable that objection should be raised at the first available opportunity. Where such an objection is raised at a belated stage, it will be wrong for the Judge to yield to the objection and that party cannot subsequently complain that the matter disclosed gives rise to a real danger of bias.

43. We may again refer to the case of State of Punjab v. Davinder Pal Singh Bhullar relied upon by Mr. Anwar Mansoor Khan, in paragraph 21 of the said judgment, the Supreme Court of India while referring to its another judgment held as follows:-- Doctrine of Waiver: "

21. In Manak Lal (Supra), this Court held that alleged bias of a Judge/official/Tribunal does not render the proceedings invalid if it is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official. The Court further observed that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. "Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question". Thus, in a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him. In such facts and circumstances, it would be clear that the party wanted to take a chance to secure a favourable order from the official/court and when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias. The issue of bias must be raised by the party at the earliest."

44. We take up the other objection that the former Chief Justice of Pakistan was particularly interested in suggesting the names of all the three members of this Court and therefore, we shall recuse ourselves from hearing this case. This argument was based on the assertion that all the three Judges (not one or two) were nominated for this Court on the basis of the personal choice of the former Chief Justice of Pakistan. This objection looses its strength when the objection against one of us (Syeda Tahira Safdar, J.), is withdrawn by the counsel Mr. Anwar Mansoor Khan during his arguments as such an objection had to stand or fall in its entirety and not in piecemeal for the reason that the ground of bias in this context was agitated against all the three Judges and not against the other two. Principle of necessity.

45. The rule of necessity as mentioned in paragraph 8 of Locabail's case and also in a reported case Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 are attracted in the matter in hand. It is to be invoked when disqualification is pleaded on certain basis, which if accepted, would leave no Judge available to hear the matter and therefore out of sheer necessity the case is to be heard. In the present case the objection was raised to the effect that one of us (Faisal Arab, J.) was removed from his office on the basis of PCO of 2007, while in case of the other two members bias was alleged on the ground that the then Chief Justice of Pakistan Mr. Iftikhar Muhammad Chaudhry was interested in their appointments. We are afraid that if such objections are entertained there would be no category of Judges left to hear this case, due to the fact that at present there are only these two categories of Judges in the Superior Courts i.e. those who were removed from the office on account of 3rd November, 2007 action, and those whose appointments were processed when the then Chief Justice Iftikhar Muhammad Chaudhry was in office.

46. The objection on the ground that Judges are affectees of PCO 2007 can also be examined in the light of the following examples:-- Example I: The Judges of the superior judiciary if for any reason are removed and subsequently restored and the action of removal is challenged before the restored judiciary, will the entire superior judiciary stand disqualified on the ground of apprehension of bias. Such an extended meaning if given to the rule of real danger of bias would amount to creating a new category of disqualification. Example II: Suppose an amendment is passed by the Parliament, which is said to be intended to curtail the powers of the superior judiciary to an extent which cut across the basic structure of the Constitution. Will the Judges of the superior courts stand disqualified to hear an action in which the controversial constitutional amendment is under challenge. The answer is in the negative as the Judges of the superior judiciary are only competent to examine the validity of a constitutional amendment.

47. In view of the principles with regard to the disqualification on the grounds of apprehension of bias discussed above no case for recusal of any of the members of this Court is made out. (III). ACCUSED SINGLED OUT

48. Mr. Anwar Mansoor Khan next argued that the Proclamation of Emergency issued on 3-11-2007 was not an act of the accused alone, but was an outcome of a consultative process that was carried out by the accused with the Prime Minister, Governors of all the four Provinces, Chairman Joint Chief of Staff Committee, Chiefs of the Armed Forces, Vice-Chief of Army Staff and Corps Commanders of the Pakistan Army yet only the accused has been proceeded against under Article 6 of the Constitution of Pakistan. It was contended that the accused feels that he has been singled out, and the motivating factor behind invoking the provisions of Article 6 of the Constitution was not to seek punishment of all those who might be found guilty at the end of the trial, but behind the proceedings was the animosity and hatred that exists between the accused on the one hand and the Prime Minister and the former Chief Justice of Pakistan on the other and therefore the whole process is tainted with malice. It was added that the amendment in the Constitution was later in point of time to include the act alleged against the accused committed earlier in time, therefore has no retrospective effect.

49. Mr. Muhammad Akram Sheikh rebutted the contention and submitted that a statement was made by the Attorney General before the honourable Supreme Court that the matter was investigated and the material for prosecution was available only against the accused and no other person due to this reason the complaint was filed only against him. It was stated that there can be many persons involved in a crime but only those could be proceeded against whom sufficient evidence is available to connect them with the commission of an offence, same is the case with the accused.

50. The material that is before us at this stage is only limited to the extent that the accused consulted with certain functionaries of the State, both civil and military, before issuance of the Proclamation of Emergency, therefore, the involvement of any other person would depend on the evidence which would come on the record. Further, the decision if recorded on the submissions pertaining to being singled out and the retrospective effect of Article 6 of the Constitution would amount to decide the case at a pre mature stage, hence we intend not to record findings thereon at this stage of the proceedings.

51. For what has been stated above we find no merit in Criminal Miscellaneous Application No.3 of 2013 and dismiss the same. MWA/15/ISL.(Special Court) Application dismissed.