P L D 1960 Supreme Court (Pak (PLP)

Substantially similar observations are made by Todd at page 191 of the 1892 Edition of his Parliamentary Government in England ' and by Ridges in the Eighth Edition of his- Constitu tional Law. The " misunderstanding " referred to by Anson and Ridges refers to the opinion of such eminent constitutional writers as Stephen, Dicey, Maitland, Chalmers and Asquith, who have in a general way expressed the opinion that the only mode in which a Judge in England may be removed is an address by both Houses of Parliament. Whatever the true constitutional position in England may be, it is quite certain that no English Judge would now accept Todd's opinion that the `decision of the question whether there be misbehaviour rests with the grantor, subject of course to any proceedings on the part of the removed officer an opinion which implies that it is for the Executive to decide whether there has or has not been misbehaviour on the part of a Judge and makes the Judges completely dependent for their tenure on the judgment of the Executive. In our Constitution the relevant provisions for the removal of the Supreme Court and High Court Judges are Articles 151 and 169 respectively which are as follows :

151 : (1) A Judge of the Supreme Court shall not be removed from his office except by an order of the President made after an address by the National Assembly, supported by the majority of the total number of members of the Assembly and by the votes of not less than two-thirds of the members present and voting, has been presented to the President for the removal of the Judge on the ground of proved misbehaviour or infirmity of mind or body ; Provided that no proceedings for the presentation of the address shall be initiated in the National Assembly unless notice of the motion to present the address is supported by not less than one-third of the total number of members of the Assembly. (2) Parliament may by law prescribe the procedure for the presentation of an address and for the investigation and proof of misbehaviour or infirmity of mind or body of a Judge, and until such a law is made the President may by order prescribe the said procedure. 169: A Judge of a High Court shall not be removed from his office except by an order of the President made on the ground of misbehaviour or infirmity of mind or body if the Supreme Court, on reference being made to it by the President, reports that the Judge ought to be removed on any of those grounds. The argument put forward by the respondent is that in Articles 151 and 169 the word `misbehaviour' is used in the narrow sense in which it has been used by Anson and Todd as referring to misbehaviour in respect of office and from this a further deduction is sought to be drawn that it is only when a Judge is guilty of mis behaviour while discharging judicial functions that' he may be removed and that no power to remove exists if the Judge be guilty of conduct, however scandalous or infamous, if that conduct has no reference to the performance of his judicial functions. The further point attempted to be made is that while a Judge in England may be removed by the Crown on an address of both Houses of Parliament for misconduct which may have nothing to do with the performance of judicial functions, that power does not vest in the President in respect of High Court Judges and must be deemed by the terms of Article 169 not to have been conferred on him by the Con stituent Assembly. Similarly in the case of Judges of the Supreme Court, who were also removable for misbehaviour, though on a special vote of the National Assembly, it is suggested that they cannot be removed on grounds on which a Judge in England may be removed by the Crown on an address of both Houses of Parliament. The logical result of this argument may be stated to be that while High Court Judges in England may be removed for misbehaviour in its extended sense on an address by both Houses of Parliament, in Pakistan neither the Judges of the Supreme Court nor those of a High Court are liable to removal except for judicial misbehaviour and that in the case of Judges of the Supreme Court even the National Assembly was not competent to consider grounds which the Houses of Parliament may consider sufficient for removal. We have not been able to discover any reason and none has been suggested for this distinction. An alternative argument is that while in the case of Supreme Court Judges the word ` mis behaviour ' might have been used in its extended sense, in the case of High Court Judges it has been used in a restricted sense. For this distinction also no valid ground is indicated and none is conceivable, and the construction contended for must lead to the absurd result that while the word `misbehaviour' in the case of High Court Judges means one thing, in the case of Judges of the Supreme Court it means something different and wider. If the view put forward be accepted, it would mean that a Judge of a High Court may continue to perform judicially functions on the Bench while he may be tried by a subordinate Court for a major criminal offence. The procedure of scire facias which the respondent relies on as a possible mode of terminating a Judge's tenure for misbehaviour is a peculiarity of the English Law and does not apply to this country, its very name being unfamiliar to most of the lawyers and Judges and there being no instance of its having ever been adopted. And though the procedure of criminal information is recognised by the Code of Criminal Procedure, the situation to which it gives rise is not essentially different from that arising from the trial of a Judge by a subordinate Court. In our Constitution, which is a written Constitution, the only provisions regarding the removal of Judges are Articles 151 and 169 both of which use the word' misbehaviour' irrespective of any qualification except that in Article 151 it has the prefix "proved", a distinction which, as is conceded by the respondent, even when considered with clause (2) of the Article, cannot have the effect of varying its meaning. In an English statute which has been judicially construed and the State constitutions of some of the United States the word " misbehaviour " or "malfeasance", where the intention is that an officer should be liable to removal only on the ground of misbehaviour relatable to his office, is followed by some such words as ` in his office ', ' in respect of his office ', or `therein '. No such words are to be found in our Constitution, and in the absence of any such restricting words the word "misbehaviour" must be understood in its ordinary sense, viz. as implying misconduct, that is to say, conduct which is unbecoming of a Judge or renders him unfit for the performance of the duties of his office, or is calculated to destroy public confidence in him. The authors on whose works reliance is placed by the respondent appear to involve themselves in an apparent con tradiction when having defined " misbehaviour " as misconduct in the performance of official duties they proceed to opine that conviction for an offence, not connected with the office, may legally amount to misbehaviour. A conviction is not an act of the person convicted, it is the result of an act done by him. If a conviction has to be treated as misbehaviour, the mis behaviour must be held to consist in the doing of the act of which the conviction is merely evidence. It would therefore follow that where a grant is forfeited by the Crown for mis behaviour, the word "misbehaviour" is given its ordinary meaning and is taken to include acts which may have no connection with the office held beyond showing that the holder thereof is not a fit person to hold it. It seems that the inconsis tency just referred to is due to the fact that in England forfeiture for misbehaviour, otherwise than in consequence of an address by Parliament, has never been enforced against a Judge and the mode of its enforcement is not itself clearly defined, the procedure by a writ of scire facias or criminal information having been suggested as a mere possibility and a conviction for an offence involving moral turpitude having been taken for granted as a breach of the condition of good behaviour. Our Article 169 avoids all these uncertainties and contradictions and we see no reason why in the State of our society a conviction by a jury should be insisted upon when disqualifying conduct can be fully inquired into and determined by the Supreme Court. We cannot therefore accept the respondent's contention that it is only on proof of misconduct in respect of a judicial proceeding or in respect of office or on proof of conviction that a High Court Judge may be removed and that no other conduct, however infamous or scandalous, or what ever defect of character it might disclose, can ever be a ground for his removal. Even if it be assumed that the word `misbehaviour' in Article 169 is used in a restricted sense and means misbehaviour in respect of office or in official capacity, the charges relating to income-tax and travelling allowance, in the circumstances of the case, have a necessary reference to the respondent's official position and are not completely independent of or severable from his official status. In our system of administration of justice the Bar occupies a very important, in fact a fundamental, position and a High Court and therefore every Judge of that Court has a responsibility for the manner in which practising lawyers conduct themselves. In the present case, the gravamen of the charge relating to income-tax is that being a Judge of the High Court the respondent, with a view to evading the payment of income-tax, abetted and incited several members of the Bar for a little or no consideration to sign false documents and make false declarations, and led them to a conduct which in English Common Law is a misdemeanour (vide Alan Harry Hudson, 1956, Criminal Appeal Reports 55) and in our own law punishable under section 52 of the Income-tax Act and sections 171, 182, 191, 192 and 193 of the Pakistan Penal Code. If any such criminal conspiracy on the part of a practising lawyer had come to the notice of the respondent, it would have been his obvious duty as a High Court Judge to take notice of it and direct disciplinary proceedings to be taken against the offending lawyer. Here the respondent himself organised a criminal conspiracy, and gave to these unfortunate lawyers explicit instructions to carry out the object of that conspiracy. Thus he himself was guilty of what it was his duty as a High Court Judge to punish. Had he himself been a member of the Bar, such conduct on his part would have rendered him liable to be disbarred and disqualified for appointment as a Judge. It cannot, therefore, be said that the charge of income-tax is foreign to his official capacity and had nothing to do with his conduct as a Judge. The position in regard to the charge relating to travelling allowance is not materially different. Under section 12 (2) of the Establishment of West Pakistan Act, 1955, the Election Petitions Tribunal has to be presided over by an active or retired Judge of a High Court. It was by reason of his status as a Judge of the High Court that the respondent was appointed Chairman of the Election Petitions Tribunal. The work that he was entrusted with was essentially judicial, and while travelling he was entitled to all the privileges and travelling allowances of a Judge of the High Court. While so acting, if the respondent, in order to draw for himself as much money as possible out of the public funds, so arranged his tours as to show utter disregard of the convenience of the parties and witnesses and of the interests of public revenue, the act must be deemed to have been done by him in the exercise of his official duties as Chairman of the Tribunal which position he held by reason of his being a High Court Judge, and must therefore be held as amounting to misbehaviour in the performance of the duties of his office. Again, in the preparation of his T. A. Bills he grossly abused the Rules which it was his duty to observe. As a Judge of a High Court he was his own "controlling officer" and as such had dominion over the public funds in the sense that by presenting a T. A. Bill, which in respect of the solemn statements in it could not be checked by another authority and had to be passed for payment by the Accountant-General, he appropriated public moneys which were intended to meet his bona fide travelling expenses. If he appropriated such moneys for his private use which under the rules were not meant for this purpose then he undoubtedly misbehaved as a Judge of the High Court because it was that office which gave him the ex-officio position of being his own controlling officer. There is no authority for the proposition that misbehaviour implies only a dishonest judicial decision, and we have no doubt that acts done by a High Court Judge in his official, though not judicial capacity, may as well amount to misbehaviour in respect of his office. The respondent had raised the plea that his actions in the income-tax matter were bona fide and within the law. The plea was dealt with as under:

" The respondent had raised the plea that his actions in the income-tax matter were bona fide and within the law. The plea was dealt with as under ": In the face of these facts, it is difficult to allow any weight to the respondent's declaration that he "believed in all good faith that the partnership and the declarations made thereunder were perfectly right according to law". The foundation of this assertion was laid by him on the proposition that an intention to avoid income-tax is neither immoral nor illegal. He argued that, assuming that the intention behind the partnership was to minimise income-tax, it was yet not contrary to law. He relied mainly upon two decided cases viz., that of the Duke of Westminster (19 Tax Cases 490), in the House of Lords and that of Kaikabhai (A I R 1930 Nag. 6) in the Nagpur Judicial Commis sioner's Court. The facts of these cases are entirely different, on the principal matters, from those of the present case. In the English case, the question was whether, when an employee's remuneration was altered, but not in quantum, so that a part was received as an annuity under a deed executed, and the rest as salary, the full remuneration should be treated as salary for taxation of the employee's income, or should the annuity portion be treated separately, and allowed as a permissible deduction from such income for the purposes of sur-tax. The employer's intention was, it seems, to secure reduction of tax by converting a portion of the wages of a number of his employees into annuities. These annui ties were payable whether or not the particular employees remained in service, and there were cases in which they had retired and were receiving their annuities. To those who continued in employment, the offer was made that they could execute fresh contracts of employment, at full economic wages besides the annuity, but it was expected that they would continue to serve upon their own wages, which would for the future be paid partly by way of annuity, and the rest as diminished wages. The case as raised was confined to the last-mentioned circumstances, and the Inland Revenue con tended that the annuity should be treated as remuneration ejusdem generis with wages. The contention was overruled by the House of Lords. The decision given was that the substance of matter was :

"what results from the legal rights and obligations of the parties ascertained from ordinary legal principles . . . . . . and the conclusion must be that each annuitant is entitled to an annuity which the payer is entitled to treat as a deduction from his total income for sur-tax purposes". (per Lord Tomlin). In that case it was admitted that the documents (granting annuities) were executed bona fide, and had been given their proper legal operation. The view taken was that the annuities could not "be ignored or treated as operating in a different way because as a result less duty is payable". (per Lord Tomlin). The facts here are completely different. The principal docu ment, namely the partnership deed, so far from being admitted as bona fide, has been characterised by the prosecution as a fraudulent document, intended for the misleading of the Revenue, by false recitals of facts, viz., that there was a partnership for the purposes of combining labour and skill in a common task and sharing the proceeds thereof, whereas in fact all the work in relation to which fees were received by the respondent, with the exception of that at Karachi for which Messrs Munawar Abbas and Ali Nazar were separately remunerated was done exclusively by the respondent. On this point, the respondent referred to certain evidence showing that at Lahore Pir Tajuddin, and Messrs Maqbool Hussain and Zaidi worked in his chamber on the preparation of data to be submitted before the Labour Tribunal. It has been seen, however, that these three persons were those who, by the respondent's own account, received the smallest remuneration of all the partners, and he has actually failed to show that he paid them anything at all. The fact of their having rendered some assistance is not by itself and without proof of their having shared in the profits, sufficient to establish the existence of a true partnership. As for the "juniors" at Karachi, their work having been separately remunerated, must be treated as having been done in the capacity of junior counsel, and not as partners. The respondent's admission that he expected not to have to remunerate the partners out of his own pocket, and his complete failure to establish his theory of a nominal payment coupled with a gift-back, furnish powerful support to the prosecution case. Unlike the precedent case of the Duke of Westminster, the respondent has not been able to prove that the undertaking to remunerate the partners according to fixed shares was ever implemented or, that any visible effort was ever made to implement it. On the other hand, the intention to avoid paying the full income-tax due under the law appears clearly from the false assertions of actual distribution in the applications for registration of the firm and renewal thereof ; in the abetment of the submission of false income-tax returns, and in the payment of the tax assessed upon these returns. There is nothing here which can be claimed to be an arrangement within the law; for avoiding income-tax. The case indeed seems to fall squarely within the category described by Lord Tomlin in his speech in the precedent case in the following words :

"Cases where documents are not bona fide nor intended to be acted upon, but are only used as a cloak to conceal a different transaction". The case of Kaikabhai is one of three Bohra brothers who were jointly running, and living on the proceeds of, a single shop. Each month they drew a fixed sum for living expenses for themselves and their mother, leaving the rest of the profits in the business. When they applied for registration as a firm, declaring that the "profits for the year ending Divali 1926 will be actually divided or credited", the Income-tax authorities refused their application, but this decision was reversed by the High Court, where it was held; (1) that the certificate given was permitted by the Statute ; (2) When such a certificate is given in good faith, the firm was entitled to be registered ; (3) partners are entitled to leave their shares of profits in the joint business ; (4) the real test of their partnership is whether each could withdraw his share if he so desired; and (5) in the instant case, it seemed the brothers did intend to divide the assets whenever it might be necessary or convenient to do so. There is clearly no similarity between the two cases. The respondent, in dealing with the circumstance that he had declared, and got his partners to declare, that the profits had been divided in both years, which declaration was not true, urged that he need only have said, as in Kaikabhai's case, that the profits would be divided. It may be a misfortune for him that he chose to declare that they had been divided, when they had not been divided, and armed himself with paper receipts to that effect. But it certainly enables the Court to apply a `real test' to the partnership in question, which test it fails to satisfy. It brings into bold relief the fact that the certificate was not given "in good faith", although the registration was obtained thereon. There is no case here of partners leaving their shares of profits in the business ; if there were, then another `real test' would immediately become applicable viz. when the dissolution took place, and the jointness of interest was terminated, did they claim to be given their shares ? They did not, and it seems that they never, at any stage, intended to lay such a claim, and for his part, the respondent believed from the outset that, should any such claims exist, they were not to be met out of his pocket. Therefore, no aid can be derived by the respondent, for, as it were, white-washing this partnership from the case of Kaikabhai. Upon the point of bona fides, the respondent urged with great vehemence that the real question was whether he himself knew or believed that the partnership was bogus. He narrowed down the question still further into this form

"did I believe that the partnership deed was nullity?" He con tended strongly that, by virtue of the deed, the partners had a right in law to claim their shares, and he relied upon an admission by Mr. Munawar Abbas in the following words- "Q. (by respondent) : When I executed this deed of parter ship along with you I made myself liable to pay the share of profit if you had demanded it ? A. 'What is correct", The admission must be read in the context of the entire evidence. Mr. Munawar Abbas is the person who declared that if he had been offered money to join, he would have refused to join, because he was only doing it out of friendship and regard. He also declared that he knew before he joined that the scheme was immoral and unlawful. His case is totally different from that of, say, one of the Bohra brothers in the Kaikabhai case, whose right to a share in the profits of the family shop, in which he worked, was undeniable, and could never be denied, since there was a real combination of labour and skill in a joint enterprise, which formed the source of livelihood of the family, and a real right to division of profits. Nothing of the kind is found here, and as for the `legal right' of any partner, the respondent himself intentionally reduced it to nothing by taking receipts for the full amount, from each one of them without paying anything except the amount of the income-tax dues. It is clear from the proved facts that the concern of the respondent was to cover the real transaction with a cloak composed of legal documents which were not bona fide and were not intended to be acted upon as among the partners, but were intended to procure action by the Revenue authorities upon the basis appearing from these documents, which was entirely different from the true transaction. But even if the claim of legality were better founded than it proves to be, that would not necessarily be a complete answer to a charge of misbehaviour by the respondent as a Judge. The records of the Privy Council provide a case, that of Algernon Montague (13 E R 773), a Colonial Judge, who had success fully moved before the Chief Justice of the only Court in the Colony, of which he was the only other Judge, an application for quashing a summons taken out against him by a creditor, who had been left with no other resource but to sue the Judge. The ground taken was that the Judge himself could not sit to hear the case, and without him the Court was not, and could not be, duly constituted. The plea, a simple one, was strictly correct in law, and was allowed by the Chief Justice. Yet, when the Judge after having been removed for this act, and for being so heavily embarrassed with debts as to affect "the due and unsuspected administration of justice", appealed before the Privy Council against the exercise of the power of the Lieutenant-Governor and Executive Council of the Colony "to amove a Judge guilty of misbehaviour in his office", the decision was that there were "sufficient grounds for motion". It was urged against him by the Attorney-General, that his motion to quash the summons, was "an act impeding the administra tion of justice, and was such a gross act of misbehaviour in his office as amply justify his removal". Yet the act was strictly competent and correct in law. As for the respondent's knowledge and belief concerning the nature and quality of the partnership deed we can only say that, in the light of the proved facts, it is impossible to conceive of any reasonable person being unaware, while operating the scheme in question, that it was based on a fraudulent appearance of partnership, created b; this legal document, and the steps in implementation included the procure ment of many other equally fraudulent documents designed on the one hand to hoodwink the Revenue authorities, and on the other hand to save the respondent from any legal action which the so-called partners might be induced to take on the basis of the deed. The case of Algernon Montague might also serve as a guide in another respect. For a Judge, the embarrassment of being in debt to potential litigants is essentially not very different from the like position assumed by acceptance of gifts from practising lawyers. It is a part of the respondent's case that, after he became a Judge, he received gifts amounting, at the least to about Rs. 7,000 (i.e. half of Rs. 14,705) from each of his seven partners. On the evidence, of course, the "gifts" would seem to be of the full amount. The sum involved is thus half a lac of rupees as a minimum, and a lac of rupees as a maximum. The making of the gifts being motivated by a clear desire to benefit the Judge to that extent, without direct or immediate consideration of any kind, it would be impossible for the Judge to suggest that by receiving the gifts he had not placed himself in a position qua each of the seven lawyers which might be "wholly inconsistent with the due and unsuspected administration of justice", by him, sitting as a Judge, should one or other of these lawyers at any later date attempt to influence his decision in a case, by appearing in Court before him or otherwise. When this aspect of the matter was put to the respondent, the answer which he gave was characteristic. He said that the gifts did not place him under any obligation because each of these partners had received great benefits from him and when they surrendered their shares, they still left a credit balance on his side so that there was no selling of conscience on his part. We are unable to see the least substance in the answer. Despite the great volume of evidence which has been placed on the record on this subject, we see no sign of any such "great benefits". None of these lawyers were compensated beyond the liabilities they had incurred in direct consequence of becoming his partners. His claim to be, and to be known by his partners to be, a "generous person" remains unsubstantiated, equally with his other allegation that he handed out hundred-rupee notes in quantities, to them, on numerous occasions. There is a clear contradiction between his claim that one purpose of the scheme was to benefit these needy lawyers, and his defence that he received back from them a substantial part, which on the evidence seems indistinguishable from the whole, of the "benefits" which the partnership deed purported to confer upon them. His true attitude towards them seems to us to have been that to which he gave expression in the course of his arguments, namely, that "these lawyers were all needy persons and were happy to get whatever they could", i.e., indirectly through association with a senior and prosperous lawyer, who soon after became a Judge. At the conclusion of this lengthy enquiry, we proceed to state our findings on the charges preferred against the respondent. We find him to be guilty of misbehaviour in following matters, viz. (1) the matter of the purported deed of partnership, and all actions pursuant thereto, involving the formation of a conspiracy with seven lawyers, and the utilization of numerous false declarations to mislead the income-tax authorities, with intent to secure great and unlawful pecuniary advantage to the respondent; and (2) in the discharge of his duties as Chairman, West Pakistan Election Petitions Tribunal, he fixed cases for hearing mostly at places far removed from headquarters, and often for removal from the constituencies concerned, in such a manner, and the requisite journeys were so performed and travelling and daily allowances were to such an extent irregularly charged, as to show clearly that the primary purpose was to make the maxim profit out of these additional allowances, and that the requirements of the petitions and the interests and conve nience of the parties and their witnesses were disregarded for the most part. We find the respondent not guilty of misbehaviour in respect of the third charge, viz.,, that relating to the appearance of Mr. Raza Kazim on the 11th July 1958, in the respondent's Court. We have formed the opinion that the misbehaviour proved against the respondent in the two first-mentioned cases is of a gross nature, and amply sufficient to justify the removal of the respondent from his office, and we hereby make our report accordingly. A. H. Reference answered.