P L D 2001 Supreme Court 568 (PLP)

i).????? That the assets of the appellants were ordered to be frozen in Ehtesab Reference No. 26 of 1998, which was temporarily entrusted to the Ehtesab Bench headed by Malik Muhammad Qayyum J., and not in? Reference No.30 of 1998. Besides, before framing of charge in the titled Ehtesab Reference No.30, the appellants' counsel had categorically? stated? that their application for? defreezing of assets had already become infructuous as their assets had been defrozen. It was,however, conceded by Mr.S.M. Zafar, Sr.ASC that the Diplomatic Passports were granted to Malik Muhammad Qayyum J. and his wife. ii).???? That in? view of the law declared by this Court in Shahadat Khan and another. v.Home Secretary to the Government of West Pakistan and others (PLD 1969 SC 158) and? Machia and 2 others v. The State (PLD 1976 SC 695)? there was no compulsion on the Bench? to try all the accused persons together of the same offences. The trial was separated on 28th September, 1998 and at the time of the framing of the charge on? 5th October, 1998, there were only two accused persons facing trial. Hence the provisions of Section 239 Cr.P.C. were not attracted. The remaining accused were not available and the learned Ehtesab Bench was required under the Act to complete the proceedings within a period of 60 days as per Section 10 of the Act. iii).??? That the learned Ehtesab Bench having been constituted for this particular case by the order of the Chief Justice of Lahore High Court dated 3rd July, 1998 was bound to conduct the case at Rawalpindi. The appellants never raised any objection in this regard till March, 1999. Moreover, the? learned Chief Justice of Lahore High Court vide notifications of different dates commencing from 10th December, 1998 to 8th April, 1999 ordered that two Judges i.e. Malik Muhammad Qayyum? and Najmul Hassan Kazmi JJ. shall work at Rawalpindi Bench from time to time, details whereof are mentioned in those notifications. iv)???? That it was evident from Para 56 of the impugned judgment that in compliance with the order of this Court, the learned Ehtesab Bench had attended to the question of admissibility of documents first and given findings on the other questions involved thereafter. v)????? That the statement of Ms.Benazir Bhutto under Section 342 Cr.P.C. was recorded through her? counsel Dr.Z. Babar Awan who was? authorised in this behalf on account of her? exemption from personal appearance in the Court on acceptance of Crl .Misc. Application No. 18 of 1998. By virtue of her application dated 23rd February, 1999 Ms. Banazir Bhutto had not only accepted her statement recorded through Dr.Z.Babar Awan but also supplemented the same by her own statement in writing. vi)???? That Mr. Ali Sabtain Fazli, learned Special? Public Prosecutor had closed the prosecution side of his own free will and accord. vii)??? That the Commission was appointed in order to set at rest the controversy raised by the learned counsel for Ms. Benazir Bhutto in an application moved under Section 476 Cr.P.C. challenging the authenticity of the documents which were presented before the Ehtesab Bench. The arguments on the application were heard in presence of the learned counsel for the parties but the order was announced later on. The Commission? was thus not appointed at the back of the appellants. In any case the appellants had brought the matter of appointment of Commission to this Court and were given ample opportunity to raise objections to the report of the Commission as well as to cross-examine? Mr. Moazzam Hayat. viii) That the learned counsel? for the appellants had the knowledge of appointment of Commission throughout, therefore, non-issuance of notice of proceedings in the Chambers of Judge Daniel Devaud could not be blown out of proportion. ix).??? That the evidence of the appellants was closed on 15th March, 1999 after passing a detailed order that they had failed to produce either? their witnesses or to get the summonses? issued in their names inspite of three opportunities granted to them. In any case this Court? had dealt with the matter in? Mohtarama Benazir Bhutto v. The State (PLD 2000 SC 795) and disposed it of in the terms? that Ms. Benazir Bhutto will be afforded an opportunity to examine herself under Section 340(2) Cr.P.C. as her own witness in the case on 22nd March, 1999, or on such other date ?convenient to the Court and allowed a fair opportunity to examine the witnesses in her defence within the bound of law.? The learned counsel for the appellants were provided ample opportunity? to put forth their point of view? and this fact was borne out by the findings recorded? in the short? as well as in the detailed orders. x)????? That the ground of bias set up by the appellants that father of the learned Senior Judge was one of the Judges? who had confirmed death sentence? awarded to the father of Ms Benazir Bhutto? appellant was no ground at all for bias as in fact the appellant might have a bias against the learned senior member and his father. xi).??? That the short order was no doubt silent about the Necklace but? in the detailed order the confiscation of the Necklace did figure? with the explanation? that the Necklace was ordered to be forfeited in lieu of non-payment? of fine of U.S $ 8.6 million . xii)??? That the short order was prepared and announced on 15th April, 1999, and the date initially mentioned therein was a typographical error pure? and simple which was duly rectified.? (xiii) That mere fact that a Judge has dealt with another matter earlier in respect of a party to the legal proceedings before him or has given certain decisions against such a party upon interlocutory applications in the proceedings before him will not render him disqualified from hearing the case. (xiv) That? bias in a Judge is to be shown as a matter of fact and not merely as a matter of opinion. A real likelihood of bias must be? established. Court does look into the same , if there was a real likelihood? that he would or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. (Emphasis provided). (xv)?? That "mere suspicion of bias even if it is not unreasonable is not sufficient to render a decision void. A real likelihood of bias must be? established". A mere apprehension in the mind of a litigant that he may not get justice, such as based on influence from circumstances is not sufficient. 14.???? In support of the last three submissions , reliance was placed on Ms.Benazir Bhutto v. President? of Pakistan and another(1992 SCMR 140) 15.????????? Learned counsel for the State also referred to the distinction drawn between the case of bias of a Judge of a Subordinate Court and that of? a? Superior Court inasmuch as in the latter case, the Judges of the Superior Courts were held to have "judicial conscience". 16.????????? Mr.Aziz A.Munshi, learned Attorney General? for Pakistan defended the impugned order and also controverted the element of any bias of the learned senior member of the Bench on the grounds? pressed into service by? Mr.S.M.Zafar, learned Sr.ASC and additionally opposed Crl.Misc. Applications No.50 and 64 of 2001 by filing a detailed reply. FINDINGS 17.????????? Since the main plank of the case of the learned counsel for both the appellants is the 'Bias' of Malik Muhammad Qayyum J. senior member of the Ehtesab Bench against the appellants, we have decided to examine it? at the outset.????????? 18.???? The foremost question is what is 'bias'. Bias has been? described in Corpus Juris Secundum, Volume X pp. 354 and 355 as under: "BIAS. Primarily, a diagonal or slant, especially of a seam, cut, or line across a fabric; and so? derivatively, a leaning of the mind; a mental predilection or prejudice; anything which turns a? man to a particular course; a particular influential power which sways the judgment; a preconceived opinion; a sort of emotion constituting untrustworthy partiality;? bent, inclination, prepossession, propension, or tendency, which sways the? mind toward one opinion rather than another;? propensity toward an object, not leaving the mind? indifferent. "Bias" has been held synonymous? with "partiality," and strictly to be distinguished from "prejudice". Under particular circumstances, the word has been described as a condition of mind; and has been held to refer, not to views entertained regarding a particular subject matter, but to the mental attitude or disposition toward a particular person, and to cover all varieties of? personal hostility or prejudice against him."? (Emphasis provided). Garner on Administrative Law, 4th? Edition at page 122 has also attempted to define bias as a disqualification and in such context observed as follows: "Not only is a person affected by an administrative decision entitled to have his case heard by the agency seized with its determination, but he may also insist on his case being heard by a fair Judge, one free from bias. Bias in this context has usually meant that the adjudicator must have no financial interest in the matter under dispute, but it is not necessarily so limited, and allegations of bias have been upheld in circumstances where there was no question of any financial interest." 19.???? In this context, the following observations of Lord Denning M.R. in? Metropolitan Properties Co. (F.G.C.), Ltd. v. Lannon and others (1968) 3 All E.R. 304) would be relevant:- "A man may be disqualified from sitting in a judicial capacity on one of two grounds. First, a "direct pecuniary interest" in the subject-matter.? Second, "bias" in favour of one side? against the other. So far as "pecuniary interest" is concerned, I agree with the Divisional Court that there is no evidence that Mr.John Lannon had any direct pecuniary interest in the suit. He had no interest in any of the flats in Oakwood Court. The only possible interest was his father's interest in having the rent of 55, Regency Lodge reduced.? It was put in this way: if the committee reduced the rents of Oakwood Court, those rents would be used as "comparable" for Regency Lodge, and might influence their being put lower than they otherwise would be.? Even if we identify the son's interest with the father's, I think that this is too remote.? It is neither direct nor certain.? It is indirect and uncertain. So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr.Lannon, and no want of good faith.? But it was said that there was, albeit unconscious, area of likelihood of bias.? This is a matter on which the law is not altogether clear; but I start with the oft-repeated saying of LORD HEWART, C.J., in R.V. Sussex Justices, Ex p. McCarthy: "? it is not merely of some importance, but of fundamental importance, that justice should both be done and be manifestly seen to be done". 20.???? In our own context, the Code of Conduct framed by the Supreme Judicial Council under Article 128 (4) of the erstwhile Constitution of Pakistan, 1962? for the Judges of the Supreme Court and the High Courts in Pakistan provides in Article IV as under:- "A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats? as near relatives or close friends. A Judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers. To ensure that justice is not only done, but is also seen to be done, a Judge must avoid all possibility of his opinion or action in any case being swayed by any consideration of personal advantage, either direct or indirect" 21.???? In reaching the conclusion that Mr. John Lannon was biased Lord Denning? employed? the following terse phraseology :-????????? "It brings home this point; in considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity.? It does not look to see if there was a real likelihood that he should, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people.? Even if he was as impartial as could be, nevertheless,? if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.? And if he does sit, his decision cannot stand. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other.? The Court will not enquire whether he did, in fact, favour one side unfairly.? Suffice it that reasonable people might think he did. The reason is plain enough.? Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: "The judge was biased." (Emphasis provided). Applying these principles, I ask myself: Ought Mr.John Lannon to have sat? I think not. If he was himself a tenant in difference with his landlord about the rent of his flat, he clearly ought not to sit on a case against the selfsame landlord, also about the rent of a flat, albeit another flat.? In this case he was not a tenant, but the son of a tenant; but that makes no difference.? No reasonable man would draw any distinction between him and his father, seeing that he was living with him and assisting him with his case.? Test it quite simply: if Mr.John Lannon were to have asked any of his friends: "I have been asked to preside in a case about the rents charged by the Freshwater Group of? Companies at Oakwood Court. But I am already assisting my father in his case against them, about the rent of his flat in Regency Lodge, where I am living with him.? Do you think I can properly sit?" The answer of any of his good friends would surely have been: "No, you should not sit. You are already acting, or as good as acting, against them.? You should not, at the same time, sit in judgment on them. No man can be an advocate for or against a party in one proceeding.? Everyone would agree that judge, or a barrister or solicitor (when he sits ad hoc as a member of a tribunal) should not sit on a case to which a near relative or a close friend is a party. So, also, a barrister or solicitor should not sit on a case to which one of his clients is a party; nor on a case where he is already acting against one of the parties.? Inevitably people would think he would be biased. I hold, therefore, that Mr.John Lannon ought not to have sat on this rent assessment committee. The decision is violable on that account and should be avoided.? Although we are differing from the Divisional Court, I would like to say that we have had a good deal more information than that court had.? In particular, we have seen a letter of Jan. 13, 1967, and other things not before them when they gave their ruling.? Otherwise I would not have thought it right to interfere.? I would allow the appeal and remit the case to another rent assessment committee. Let it be heard again as soon as may be".(Emphasis provided). 22.???? The element of bias in a Judge was considered? by the Federal Court of Pakistan in the case of? Anwar and another v. The Crown? (PLD 1955 FC 185). ln that case, the Federal Court had the occasion to reconsider an earlier case of Khairdi Khan? v. Crown? (PLD 1953 FC 223). In the former case latter case of Khairdi Khan (supra) was reconsidered by the Federal Court in which an appeal had been allowed? because the High Court in its revisional jurisdiction had arrived at a definite finding of fact while ordering the retrial after? setting aside? an acquittal. In the latter case of Khairdi Khan (supra) , late Abdul Rashid, CJ. inferred that the Sessions Judge who tried the case would not be? able to deliver an unbiased judgment for the reason of observations made by the High Court.? But late Muhammad Munir, CJ. disagreed? with the judgment?? in Khairdi Khan's case (supra)? and held as under:- "We are, therefore, perfectly entitled to hold, as we do in this case after a full argument that the rule laid down in Khairdi Khan's case that bias vitiated all judgments and all orders made by? a Judge are void is incorrect and should no longer form part of the law of Pakistan." 23.???? Nonetheless late Muhammad Munir, Chief Justice, was constrained to hold that the accused has a right of a fair trial, by a judicial minded person, not functioning ?under an influence which might paralyse his judicial faculties as to result in? absence of a fair trial.? The learned Chief Justice also held? that bias may be caused by a judgment, order or observation of a superior Court or it may spring? from personal, political, religious, communal, racial, commercial or economic considerations. The other conclusion recorded by the Chief Justice is that bias would vitiate judicial proceedings if such circumstances are created or brought about by the Judge as would? rob him of the confidence that a litigant may? have in the Judge. We can do no better than? reproduce as under the observations of? late Munir. CJ:- "Thus no Judge can be a Judge in his own cause, or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seem to be done, and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication, and its result will be? vacated by the Court of Appeal at the instance of the dissatisfied party." 24.???? It may be added at this juncture that the consideration of bias is a? branch of the Principles of Natural Justice. It is now agreed on all hands that there are certain broad principles of natural justice deducible from two Latin Maxims firstly, "Nemo Debet Esse Judex in Propria Sua Causa" which formed the foundation of the doctrine firstly, that no one can be? Judge in his own cause which in a wide application means that a judicial or quasi-judicial authority not only himself not be a party but must also not? be interested as a party in the subject-matter of the dispute which he has to decide? and; second principle is 'Audi Alteram Partem'? (hear the other side). Bias is said? to be of three different kinds: (a) A Judge may have a bias in the subject-matter which means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest. A 'legal interest' means that the Judge is 'in such a position that a bias must be assumed' "(b)? Pecuniary interest in the cause, however, slight, will disqualify the Judge, even though it is not proved that the decision has in fact been? affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges the decision is vitiated". (c) A Judge may have a personal bias towards a party owing to relationship and the like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is -? " Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?" The test is whether there is a 'real likelihood of prejudice', but it does not require certainty.' 'Real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or 'capricious persons'. (Emphasis provided). 25.???? No doubt, the Judges of the Superior Courts are blessed with a judicial? conscience? but question nonetheless is whether a particular Judge of the Subordinate or the Superior Judiciary against whom the allegation of bias is alleged is possessed of judicial conscience. This litmus test? is indeed very difficult but certainly not impossible. The circumstances of a particular case wherein bias of a Judge is alleged? would themselves speak volumes for the same. In other words, the? principle is well settled that a Judge of the Superior Court is a keeper of his own conscious and it is for him to decide to hear or not to hear a matter before him.? However, in the present case we are not inclined to adhere to the said settled principle because bias is floating on the surface of the record. 26.???? Admittedly, the assets etc of the two appellants were frozen by the Bench headed by Malik Muhammad Qayyum, J. in Ehtesab Reference No. 26/1998 on 27th April, 1998.? This fact also stands admitted that Ehtesab Reference No. 26/1998 was temporarily entrusted to the Bench headed by Malik Muhammad Qayyum, J. The undisputed material made available on the record makes it manifest that Malik Muhammad Qayyum, J. had already moved an application for grant of Diplomatic Passport for himself and his wife? which had reached the Prime Minister Secretariat on? the 17th April, 1998, along with the following summary:- ?SECRET? MINISTRY OF FOREIGN AFFAIRS SUMMARY FOR THE PRIME MINISTER Subject: REQUEST FOR ISSUANCE OF DIPLOMATIC PASSPORTS TO? JUSTICE MALIK MUHAMMAD QAYYUM, JUDGE LAHORE HIGH COURT AND? HIS WIFE" The Ministry of Law? has requested for grant of diplomatic passports to Justice Malik Muhammad Qayyum Judge Lahore High Court and his wife.

2. According to the rules covering the Issuance of diplomatic passports, Justice Malik Muhammad Qayyum and his wife are not entitled to hold a diplomatic passport. It? may further be noted? that Judges of the High Court and the Supreme Court are not entitled to the grant of diplomatic passports. If an exception is made in one case, other members of the Judiciary? are likely to ask for similar privileges. This Ministry is, therefore, not in favour of making? an exception in the case.

3. The Prime Minister's kind orders are nevertheless solicited on Justice Malik Muhammad Qayyum's request.

4. The Foreign Minister has seen and approved the Summary. Sd/- (Anwar Kemal) Acting Foreign Secretary Prime Minister's Secretariat (Mr.Tauqir Hassain, Additional Secretary(FA), Islamabad. Ministry of Foreign Affairs U.O.No.S/FS/AD 56/98 dated 17-3-1998. Prime Minister has been pleased to approve Para 1 above: grant of diplomatic passports to Mr.Justice Malik M.Qayyum ,Judge, Lahore High Court and his wife. Sd/- 30-04-1998 Secretary, Foreign Affairs." 27.?????????????? It is noteworthy that on the same summary the following direction was given by Senator Saifur Rehman, who was then Incharge of Ehtesab Cell,? to one of his sub-ordinate Officers:- "Mr.Sami Khilji please have it delivered to justice Qayyum" Regards????????????????????????????????????????????????????????????? Sd/- Saif 28.???? The order with regard to freezing of properties and assets etc. of the appellants was passed on 27th April, 1998 while on 30th April,? 1998, the Prime Minister approved the grant of Diplomatic Passports to the learned Judge and his wife ignoring the formidable objection raised by the Ministry of Foreign Affairs. It was candidly conceded by the learned Attorney General for Pakistan that no Judge of the Superior Courts is entitled to grant of a Diplomatic Passport except the Chief Justice of Pakistan. 29.???? The? unchallenged document in respect of the grant of Diplomatic Passports not only goes a long way to suggest that Malik Muhammad Qayyum, J. had acquired a personal interest in the case by deriving an out of the way favour of grant of Diplomatic Passport to him and his wife but also divulges a close liaison between the learned Judge, Senator Saifur Rehman and Mian Muhammad Nawaz Sharif, the then Prime Minister whose political rivalry with Ms. Benazir Bhutto appellant is a matter of common knowledge. 30.???? There is yet another undisputed circumstance, highlighted by Mr.Abdul Hafeez Pirzada, from which inference of partiality of the learned Judge and liason ?with the then Prime Minister Mian Muhammad Nawaz Sharif can be safely drawn. It is that Malik Parvez , real brother of Malik Muhammad Qayyum J. was a sitting Member National Assembly of PML (N) having been elected unopposed through a bye-election against a seat vacated by Mian Muhammad Nawaz Sharif. 31.???? The? order of defreezing of the assets of the appellants passed? by another Bench seized of Reference No.26 of 1998 was not produced before us. Be that as it may, the order appears to have aggravated and not diminished the personal interest of Malik Muhammad Qayyum J. in the case whose link with Mian Muhammad Nawaz Sharif, who was diametrically opposed to Ms.Benazir Bhutto appellant cannot be denied. This?? conclusion of ours gets complete support from the principle enunciated in para-22 of the judgment in the case of Ms.Benazir Bhutto v. President of Pakistan (1992 SCMR 140) that "there seems to be judicial consensus that a Judge having pecuniary or proprietary interest or any other personal interest in the subject matter of a case before him cannot hear the case.(emphasis provided). ?32.??? Initially Ehtesab Reference No. 30/1998 was pending at Lahore from where it was transferred by this Court on 14th Decembwer,1998 to Rawalpindi Bench of Lahore High Court vide judgment? in the case of Mohtarma Benazir Bhutto supra (1999 SCMR 759). At that time an Ehtesab Bench comprising Muhammad Nawaz Abbasi and Sheikh Amjad Ali, JJ. was already functioning and was seized of inter alia? another Ehtesab Reference No.31/1998 pending decision against Ms.Benazir Bhutto. Notwithstanding the ratio of the judgment of Mohtarma Benazir Bhutto supra being that the Reference aforesaid be heard at Rawalpindi by the Ehtesab Bench functioning there, Malik Muhammad Qayyum, J. somehow or other managed to have the Reference heard by the Bench headed by him even at Rawalpindi. It would , therefore, be worth while to reproduce hereunder para 51 of the Short Order in the case of Mohtarma Benazir Bhutto supra:- "At present, two Ehtesab References are pending against the petitioners at Rawalpindi Bench of Lahore High Court (Ehtesab Reference 32 and 33/98) while five References against the petitioners are pending at principal seat of Lahore High Court (Reference Nos.26,27,29,30 and 31/98). As the petitioners, inter alia, have their residence in Islamabad, it is directed that References Nos.26,27,29,30 and 31 of 1998 which are being heard at principal seat of Lahore High Court, will henceforth be heard at the Rawalpindi Bench of Lahore High Court where two Ehtesab Reference are already pending against them." 33.???? The judgment of this Court was mis-interpreted as if Ehtesab Bench? was ordered to be transferred to Rawalpindi Bench rather than the Reference itself. 34.???? It appears from the record that notifications were issued by the then learned Chief Justice Lahore High Court, from time to time to enable Malik Muhammad Qayyum, J. to visit Rawalpindi to hear Ehtesab Reference No.30/1998 and to be present on each and every date of hearing of the afore-noted? Reference. It? supports the contention of the learned counsel for the appellants that Reference No.30/1998 was virtually "chased" by Malik Muhammad Qayyum, J. and the exercise had caused substantial financial loss to the state exchequer.? The "chase" thus given amply demonstrates the keen interest of Malik Muhammad Qayyum, J. to? impose himself on the matter and take it to its end according to his pre-conceived notions. 35.???? In course of hearing of Reference by the learned Judges, the following circumstances stare into one's eyes from which inescapable deduction is an urge to proceed? hastily to reach at the foregone conclusion. First and foremost? circumstance is the separation of trial? of appellants from their other ten co-accused. No doubt? the said course of? action is permissible in law but that can only be done after complying with the requirements of law. Under Section 512 Cr.P.C. the trial can be bifurcated but before that it has to be? adjudged that the other co-accused are avoiding to face the trial or their presence can not be procured? without any amount of delay . In the present case, the summonses were sent to Switzerland to the? foreigner accused? and the report received back revealed that a? period of thirty days was required to effect the service. The learned Judges in? haste? did neither? wait for the requisite period nor? repeated the process and separated? the trial. In this context there is nothing on the record to show the? mode of service or issuance of the process against the co-accused of the appellants particularly when A.R.Siddiqui the then Chairman CBR and? Khalil Ahmad, Chief Collector Customs were in Pakistan. Their attendance could, therefore,? have been secured, but the learned Judges do not seem to have taken any step to procure their attendance. It seems that only target for the trial was the person of the appellants. In? our view failure to procure attendance of the co-accused of the two appellants and the consequential orders were motivated. 36.???? The record reveals the glaring injustice? meted out to Asif Ali Zardari appellant when the Court declined? to grant him permission to recall certain witnesses for the purpose of cross-examination. The learned Judges proceeded to observe, vide order dated 22nd February, 1999, that since no prejudice had been caused as the defence of both the appellants was joint, therefore, there was no necessity to afford an opportunity to the appellant Asif Ali Zardari? to cross-examine the said witnesses. It may be pointed out that because of freezing of assets and funds, the appellant Asif Ali Zardari had expressed his inability to engage a counsel of his choice to cross-examine those witnesses. Admittedly, Asif Ali Zardari appellant had not cross-examined PWs 1 to 5 and PW-11 and the learned Judges had observed that if at a subsequent stage? it was? felt that some prejudice had been caused due to non-availability of a counsel? for Asif Ali Zardari?? appellant, the Court would consider recalling the aforesaid witnesses for further cross-examination. Having? observed so, the learned Judges declined to allow to Asif Ali Zardari? appellant an opportunity to recall and cross-examine those witnesses. In our view, it was an invaluable? right of Asif Ali Zardari appellant to recall and cross-examine those witnesses for ensuring a fair trial. Denial of such right had caused failure of justice and? had prejudiced the appellants in their defence besides?? reflecting? bias. 37.???? The mode and manner in which the statement of Ms.Benazir Bhutto under Section 342 Cr.P.C.? was recorded leaves no? doubt in our mind that the provision of Section 342 Cr.P.C. was abused with a view to reach at a hasty conclusion. The underlying object of Section 342 Cr.P.C. is to enable an accused to explain? the incriminating? circumstances in the prosecution evidence appearing against him. In our view, this is the most valuable right being sacrosanct principle of natural justice. No doubt, the attendance of Ms.Benazir Bhutto appellant had been? exempted but as she was available in Pakistan, it was? incumbent upon the learned Judges to have summoned? her for recording her statement. The features of the prosecution case also necessitated her examination in person.? To our utter dismay the learned Judges opted not to do so and considering? the compliance of the provisions? of law sufficient by recording the statement of her counsel who according to the learned counsel for the appellants was not authorised to speak on her behalf. According to Ms.Benazir Bhutto appellant, when she came to know that her statement under Section 342 Cr.P.C had been got recorded through her counsel she at once made an application to supplement her statement under Section 342 Cr.P.C. and made a supplementary statement in writing? containing? answers to all the questions put to her counsel and requested the Court to treat the? statement in writing as her statement under Section 342 Cr.P.C. but queerly enough her said statement was ignored. The circumstance is also a link in the bias. 38.???? In the course of trial, while the statement of Hassan? Waseem Afzal (PW-14) was being recorded, an application under Section 476 Cr.P.C. was moved by the learned counsel of Ms.Benazir Bhutto appellant for taking action against the witness for producing allegedly? fabricated documents. The learned Judges directed the prosecution to file reply which was done by Hassan Waseem Afzal? in his personal capacity. The learned Judges, in post-haste appointed a Commission consisting of Mr. Moazzam Hayat, the then Registrar, Lahore High Court? for proceeding? to Switzerland to ascertain the genuineness? and authenticity of those documents. This order was passed on 1st March,1999, with the direction to the Commission to submit its report within ten days. The Commission issued notice to the learned counsel for Ms. Benazir Bhutto appellant? to appear before him in Switzerland on 5th March,1999. Imagine, how could? a counsel or an accused appear in Switzerland in four days particularly? when travel arrangements? had to be made? and a Visa to be obtained. This order was challenged in this Court which suspended? the order of appointment of Commission and proceedings before it. However, this order was vacated on 8th March, 1999 when Mr. Moazzam Hayat was already in Geneva. After vacation of the order without issuing a fresh notice to the appellant , the Commission proceeded to execute the Commission. In this context,? the exact grievance is reproduced hereunder:??????????????????? "The matter came up for hearing on?????? Ist March, 1999 and the learned Ehtesab Bench passed an order for production of defence evidence by the petitioner and adjourned the case for? 8th March, 1999 for the purpose.? During the proceedings of the case the Special Public Prosecutor pressed the plea taken in the written reply on behalf of Hassan Wasim Afzal, P.W.14, for issuance of commission to verify the genuineness and the authenticity of certified copies of documents tendered in evidence by the prosecution. It is alleged that no order was passed when the case was adjourned in presence of both the parties.? At about 4.00 p.m. it was communicated by the Additional Registrar of the Lahore High Court at Rawalpindi to Mr.Farooq H.Neak, Advocate, on telephone, that the impugned order has been passed by the learned Ehtesab Bench and despite request, copy of the order was not provided." 39.???? The manner of appointment of? Commission and the Commission having proceeded? to Geneva and the steps taken by it in Geneva shows a mysterious hidden? hand behind it. 40.? While challenging the appointment of Commission, the question of admissibility of? the documents produced by Hassan Waseem Afzal? PW-14 was agitated and leave was granted by this Court. At the time of disposal of the appeal, this Court? passed the order in the case of Mohtarama Benazir Bhutto v. The State? (PLD 1999 SC 937) reproduced in Para 11 (d) ante. We are sorry to observe that in flagrant disregard of the directions issued by this Court the learned Judges proceeded to decide the case in its entirety whereas learned Judges should have taken up the question of admissibility? of documents first as ordained by this Court. The learned Judges, after receipt of the report of Commission, treated it as an incriminating circumstance but we have noticed that this important piece of allegedly incriminating evidence was not put to the accused. 41. ??? Another intriguing circumstance? consists of? the statement of Mr.Ali Sabtain Fazali, learned? Special Public Prosecutor. It was pointed out by the appellants that? his statement was in fact recorded by the learned Ehtesab Bench itself giving up three very important prosecution witnesses including V.A.Jaferi , Javed Talat and Khalil Ahmad. Ostensibly it was done? by the learned Judges with a view to delivering?? the judgment hastily and this statement was merely read over by the Court to the? learned Special Public Prosecutor who admitted it to be correct. This was strange procedure prima facie adopted in order to hasten the proceedings and to reach the foregone conclusion. 42.???? We have considered all the above noted features of the case and? we have also noted the fate of application moved by the learned counsel for? Asif Ali Zardari appellant under Section??? 265-K of Cr.P.C. The atmosphere? must have been highly charged. It can also be imagined when on the intervention of the? Court the proceedings were drastically cut short by the learned Judges; the defence evidence was restricted to the recording? of the statement of a solitary defence witness, namely, Muhammad Nawaz, Superintendent? Landhi Jail as DW-1. Suddenly the Court rises; retires to the Chambers, re-appears after a while and the short order is handed down on 15th April,1999 which appears to have been pre-authored? bearing?? the date as 14th April, 1999, which was scored off and corrected. 43.???? At this stage, it will be pertinent to mention that the Ehtesab Bench? which tried and convicted the appellants consisted of two learned Judges. It appears from the record that Malik Muhammad Qayyum J. being the senior member of the Bench had exerted his influence on the second member S. Najamul Hassan Kazmi J. who being an unconfirmed Judge of the Lahore High Court was sweating for confirmation. We have taken judicial notice of the relevant Notifications issued by the Government of Pakistan in the Ministry of Law, Justice, Human Rights and Parliamentary Affairs dated 27th May, 1997, 26th May, 1998 and 13th May, 1999 that the said learned member of the Bench was appointed as Additional Judge of the Lahore High Court for a period of one year but the tenure was extended for a further period of one year with effect from 28th May, 1998 and he was ultimately appointed as a permanent Judge on 13th May, 1999. 44. ??? In support of this appeal an attempt was made at the bar that the learned Judges were not applying independent mind and had been pressurized and coaxed by the authorities in power to oust the appellants from the arena of politics by securing their disqualification to hold public office. On behalf of the appellants certain audio-tapes and their transcripts were attempted to be brought on the record. It was argued that Mr.Khalid Anwar, the then Law Minister, Mr.Rashid Aziz Khan J., the then? Chief Justice of Lahore High Court, Senator Saifur Rehman, Incharge Ehtesab Bureau and? Malik Muhammad Qayyum J. were clandestinely in league with each other to secure the conviction of the appellants at the behest of the then Prime Minister of Pakistan. The other side took a categorical stance that the audio-tapes were fake and in any event were extraneous for the purpose of determination of the matter in controversy in appeal? 45.???? There is no need to advert to the audio-tapes and their transcripts as there is sufficient material on record which substantiates the allegation of bias. We are convinced that the trial in this case was not fair and on account of bias of the Ehtesab Bench, highlighted in preceding paragraphs, the trial of appellants stands vitiated. 46.???? Resultantly, the titled appeals are accepted, convictions recorded against and?? the sentences awarded to? the appellants are set aside and? the case is? remitted to the Court of competent jurisdiction for trial afresh in accordance with law. This disposes of the connected matters as well.? 47.???? Before parting with the judgment we are inclined to dispose of plea? of Mr. Abdul Hafeez Pirzada, learned Sr.ASC to the effect that Asif Ali Zardari, appellant had already served out the substantive sentence of imprisonment and, therefore, he is entitled to be released from Jail.? As we have already sent the case to a Court of? competent jurisdiction, it would be more appropriate if this matter is agitated before the Court aforesaid. Judge. Judge Judge Judge Judge Judge Judge ISLAMABAD. DATED; 6th April, 2001. APPROVED FOR REPORTING? Top ? Top ? Top Top? Top Top Top Top Top Top Top Top ? himself a party or has direct connection with the litigation, so as to constitute a legal interest. A 'legal interest' means that the Judge is 'in such a position that a bias must be assumed' "(b)? Pecuniary interest in the cause, however, slight, will disqualify the Judge, even though it is not proved that the decision has in fact been? affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges the decision is vitiated". (c) A Judge may have a personal bias towards a party owing to relationship and the like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is -? " Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?" The test is whether there is a 'real likelihood of prejudice', but it does not require certainty.' 'Real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or 'capricious persons'. (Emphasis provided). 25.???? No doubt, the Judges of the Superior Courts are blessed with a judicial? conscience? but question nonetheless is whether a particular Judge of the Subordinate or the Superior Judiciary against whom the allegation of bias is alleged is possessed of judicial conscience. This litmus test? is indeed very difficult but certainly not impossible. The circumstances of a particular case wherein bias of a Judge is alleged? would themselves speak volumes for the same. In other words, the? principle is well settled that a Judge of the Superior Court is a keeper of his own conscious and it is for him to decide to hear or not to hear a matter before him.? However, in the present case we are not inclined to adhere to the said settled principle because bias is floating on the surface of the record. 26.???? Admittedly, the assets etc of the two appellants were frozen by the Bench headed by Malik Muhammad Qayyum, J. in Ehtesab Reference No. 26/1998 on 27th April, 1998.? This fact also stands admitted that Ehtesab Reference No. 26/1998 was temporarily entrusted to the Bench headed by Malik Muhammad Qayyum, J. The undisputed material made available on the record makes it manifest that Malik Muhammad Qayyum, J. had already moved an application for grant of Diplomatic Passport for himself and his wife? which had reached the Prime Minister Secretariat on? the 17th April, 1998, along with the following summary:- ?SECRET? MINISTRY OF FOREIGN AFFAIRS SUMMARY FOR THE PRIME MINISTER Subject: REQUEST FOR ISSUANCE OF DIPLOMATIC PASSPORTS TO? JUSTICE MALIK MUHAMMAD QAYYUM, JUDGE LAHORE HIGH COURT AND? HIS WIFE" The Ministry of Law ?has requested for grant of diplomatic passports to Justice Malik Muhammad Qayyum Judge Lahore High Court and his wife.

2. According to the rules covering the Issuance of diplomatic passports, Justice Malik Muhammad Qayyum and his wife are not entitled to hold a diplomatic passport. It? may further be noted? that Judges of the High Court and the Supreme Court are not entitled to the grant of diplomatic passports. If an exception is made in one case, other members of the Judiciary? are likely to ask for similar privileges. This Ministry is, therefore, not in favour of making? an exception in the case.

3. The Prime Minister's kind orders are nevertheless solicited on Justice Malik Muhammad Qayyum's request.

4. The Foreign Minister has seen and approved the Summary. Sd/- (Anwar Kemal) Acting Foreign Secretary Prime Minister's Secretariat (Mr.Tauqir Hassain, Additional Secretary(FA), Islamabad. Ministry of Foreign Affairs U.O.No.S/FS/AD 56/98 dated 17-3-1998. Prime Minister has been pleased to approve Para 1 above: grant of diplomatic passports to Mr.Justice Malik M.Qayyum ,Judge, Lahore High Court and his wife. Sd/- 30-04-1998 Secretary, Foreign Affairs." 27.?????????????? It is noteworthy that on the same summary the following direction was given by Senator Saifur Rehman, who was then Incharge of Ehtesab Cell,? to one of his sub-ordinate Officers:- "Mr.Sami Khilji please have it delivered to justice Qayyum" Regards????????????????????????????????????????????????????????????? Sd/- Saif 28.???? The order with regard to freezing of properties and assets etc. of the appellants was passed on 27th April, 1998 while on 30th April,? 1998, the Prime Minister approved the grant of Diplomatic Passports to the learned Judge and his wife ignoring the formidable objection raised by the Ministry of Foreign Affairs. It was candidly conceded by the learned Attorney General for Pakistan that no Judge of the Superior Courts is entitled to grant of a Diplomatic Passport except the Chief Justice of Pakistan. 29.???? The? unchallenged document in respect of the grant of Diplomatic Passports not only goes a long way to suggest that Malik Muhammad Qayyum, J. had acquired a personal interest in the case by deriving an out of the way favour of grant of Diplomatic Passport to him and his wife but also divulges a close liaison between the learned Judge, Senator Saifur Rehman and Mian Muhammad Nawaz Sharif, the then Prime Minister whose political rivalry with Ms. Benazir Bhutto appellant is a matter of common knowledge. 30.???? There is yet another undisputed circumstance, highlighted by Mr.Abdul Hafeez Pirzada, from which inference of partiality of the learned Judge and liason? with the then Prime Minister Mian Muhammad Nawaz Sharif can be safely drawn. It is that Malik Parvez , real brother of Malik Muhammad Qayyum J. was a sitting Member National Assembly of PML (N) having been elected unopposed through a bye-election against a seat vacated by Mian Muhammad Nawaz Sharif. 31.???? The? order of defreezing of the assets of the appellants passed? by another Bench seized of Reference No.26 of 1998 was not produced before us. Be that as it may, the order appears to have aggravated and not diminished the personal interest of Malik Muhammad Qayyum J. in the case whose link with Mian Muhammad Nawaz Sharif, who was diametrically opposed to Ms.Benazir Bhutto appellant cannot be denied. This?? conclusion of ours gets complete support from the principle enunciated in para-22 of the judgment in the case of Ms.Benazir Bhutto v. President of Pakistan (1992 SCMR 140) that "there seems to be judicial consensus that a Judge having pecuniary or proprietary interest or any other personal interest in the subject matter of a case before him cannot hear the case.(emphasis provided). ?32.??? Initially Ehtesab Reference No. 30/1998 was pending at Lahore from where it was transferred by this Court on 14th Decembwer,1998 to Rawalpindi Bench of Lahore High Court vide judgment? in the case of Mohtarma Benazir Bhutto supra (1999 SCMR 759). At that time an Ehtesab Bench comprising Muhammad Nawaz Abbasi and Sheikh Amjad Ali, JJ. was already functioning and was seized of inter alia? another Ehtesab Reference No.31/1998 pending decision against Ms.Benazir Bhutto. Notwithstanding the ratio of the judgment of Mohtarma Benazir Bhutto supra being that the Reference aforesaid be heard at Rawalpindi by the Ehtesab Bench functioning there, Malik Muhammad Qayyum, J. somehow or other managed to have the Reference heard by the Bench headed by him even at Rawalpindi. It would , therefore, be worth while to reproduce hereunder para 51 of the Short Order in the case of Mohtarma Benazir Bhutto supra:- "At present, two Ehtesab References are pending against the petitioners at Rawalpindi Bench of Lahore High Court (Ehtesab Reference 32 and 33/98) while five References against the petitioners are pending at principal seat of Lahore High Court (Reference Nos.26,27,29,30 and 31/98). As the petitioners, inter alia, have their residence in Islamabad, it is directed that References Nos.26,27,29,30 and 31 of 1998 which are being heard at principal seat of Lahore High Court, will henceforth be heard at the Rawalpindi Bench of Lahore High Court where two Ehtesab Reference are already pending against them." 33.???? The judgment of this Court was mis-interpreted as if Ehtesab Bench? was ordered to be transferred to Rawalpindi Bench rather than the Reference itself. 34.???? It appears from the record that notifications were issued by the then learned Chief Justice Lahore High Court, from time to time to enable Malik Muhammad Qayyum, J. to visit Rawalpindi to hear Ehtesab Reference No.30/1998 and to be present on each and every date of hearing of the afore-noted? Reference. It? supports the contention of the learned counsel for the appellants that Reference No.30/1998 was virtually "chased" by Malik Muhammad Qayyum, J. and the exercise had caused substantial financial loss to the state exchequer.? The "chase" thus given amply demonstrates the keen interest of Malik Muhammad Qayyum, J. to? impose himself on the matter and take it to its end according to his pre-conceived notions. 35.???? In course of hearing of Reference by the learned Judges, the following circumstances stare into one's eyes from which inescapable deduction is an urge to proceed? hastily to reach at the foregone conclusion. First and foremost? circumstance is the separation of trial? of appellants from their other ten co-accused. No doubt? the said course of? action is permissible in law but that can only be done after complying with the requirements of law. Under Section 512 Cr.P.C. the trial can be bifurcated but before that it has to be? adjudged that the other co-accused are avoiding to face the trial or their presence can not be procured? without any amount of delay . In the present case, the summonses were sent to Switzerland to the? foreigner accused? and the report received back revealed that a? period of thirty days was required to effect the service. The learned Judges in? haste? did neither? wait for the requisite period nor? repeated the process and separated? the trial. In this context there is nothing on the record to show the? mode of service or issuance of the process against the co-accused of the appellants particularly when A.R.Siddiqui the then Chairman CBR and? Khalil Ahmad, Chief Collector Customs were in Pakistan. Their attendance could, therefore,? have been secured, but the learned Judges do not seem to have taken any step to procure their attendance. It seems that only target for the trial was the person of the appellants. In? our view failure to procure attendance of the co-accused of the two appellants and the consequential orders were motivated. 36.???? The record reveals the glaring injustice? meted out to Asif Ali Zardari appellant when the Court declined? to grant him permission to recall certain witnesses for the purpose of cross-examination. The learned Judges proceeded to observe, vide order dated 22nd February, 1999, that since no prejudice had been caused as the defence of both the appellants was joint, therefore, there was no necessity to afford an opportunity to the appellant Asif Ali Zardari? to cross-examine the said witnesses. It may be pointed out that because of freezing of assets and funds, the appellant Asif Ali Zardari had expressed his inability to engage a counsel of his choice to cross-examine those witnesses. Admittedly, Asif Ali Zardari appellant had not cross-examined PWs 1 to 5 and PW-11 and the learned Judges had observed that if at a subsequent stage? it was? felt that some prejudice had been caused due to non-availability of a counsel? for Asif Ali Zardari?? appellant, the Court would consider recalling the aforesaid witnesses for further cross-examination. Having? observed so, the learned Judges declined to allow to Asif Ali Zardari? appellant an opportunity to recall and cross-examine those witnesses. In our view, it was an invaluable? right of Asif Ali Zardari appellant to recall and cross-examine those witnesses for ensuring a fair trial. Denial of such right had caused failure of justice and? had prejudiced the appellants in their defence besides?? reflecting? bias. 37.???? The mode and manner in which the statement of Ms.Benazir Bhutto under Section 342 Cr.P.C.? was recorded leaves no? doubt in our mind that the provision of Section 342 Cr.P.C. was abused with a view to reach at a hasty conclusion. The underlying object of Section 342 Cr.P.C. is to enable an accused to explain? the incriminating? circumstances in the prosecution evidence appearing against him. In our view, this is the most valuable right being sacrosanct principle of natural justice. No doubt, the attendance of Ms.Benazir Bhutto appellant had been? exempted but as she was available in Pakistan, it was? incumbent upon the learned Judges to have summoned? her for recording her statement. The features of the prosecution case also necessitated her examination in person.? To our utter dismay the learned Judges opted not to do so and considering? the compliance of the provisions? of law sufficient by recording the statement of her counsel who according to the learned counsel for the appellants was not authorised to speak on her behalf. According to Ms.Benazir Bhutto appellant, when she came to know that her statement under Section 342 Cr.P.C had been got recorded through her counsel she at once made an application to supplement her statement under Section 342 Cr.P.C. and made a supplementary statement in writing? containing? answers to all the questions put to her counsel and requested the Court to treat the? statement in writing as her statement under Section 342 Cr.P.C. but queerly enough her said statement was ignored. The circumstance is also a link in the bias. 38.???? In the course of trial, while the statement of Hassan? Waseem Afzal (PW-14) was being recorded, an application under Section 476 Cr.P.C. was moved by the learned counsel of Ms.Benazir Bhutto appellant for taking action against the witness for producing allegedly? fabricated documents. The learned Judges directed the prosecution to file reply which was done by Hassan Waseem Afzal? in his personal capacity. The learned Judges, in post-haste appointed a Commission consisting of Mr. Moazzam Hayat, the then Registrar, Lahore High Court? for proceeding? to Switzerland to ascertain the genuineness? and authenticity of those documents. This order was passed on 1st March,1999, with the direction to the Commission to submit its report within ten days. The Commission issued notice to the learned counsel for Ms. Benazir Bhutto appellant? to appear before him in Switzerland on 5th March,1999. Imagine, how could? a counsel or an accused appear in Switzerland in four days particularly? when travel arrangements? had to be made? and a Visa to be obtained. This order was challenged in this Court which suspended? the order of appointment of Commission and proceedings before it. However, this order was vacated on 8th March, 1999 when Mr. Moazzam Hayat was already in Geneva. After vacation of the order without issuing a fresh notice to the appellant , the Commission proceeded to execute the Commission. In this context,? the exact grievance is reproduced hereunder:??????????????????? "The matter came up for hearing on?????? Ist March, 1999 and the learned Ehtesab Bench passed an order for production of defence evidence by the petitioner and adjourned the case for? 8th March, 1999 for the purpose.? During the proceedings of the case the Special Public Prosecutor pressed the plea taken in the written reply on behalf of Hassan Wasim Afzal, P.W.14, for issuance of commission to verify the genuineness and the authenticity of certified copies of documents tendered in evidence by the prosecution. It is alleged that no order was passed when the case was adjourned in presence of both the parties.? At about 4.00 p.m. it was communicated by the Additional Registrar of the Lahore High Court at Rawalpindi to Mr.Farooq H.Neak, Advocate, on telephone, that the impugned order has been passed by the learned Ehtesab Bench and despite request, copy of the order was not provided." 39.???? The manner of appointment of? Commission and the Commission having proceeded? to Geneva and the steps taken by it in Geneva shows a mysterious hidden? hand behind it. 40.? While challenging the appointment of Commission, the question of admissibility of? the documents produced by Hassan Waseem Afzal? PW-14 was agitated and leave was granted by this Court. At the time of disposal of the appeal, this Court? passed the order in the case of Mohtarama Benazir Bhutto v. The State? (PLD 1999 SC 937) reproduced in Para 11 (d) ante. We are sorry to observe that in flagrant disregard of the directions issued by this Court the learned Judges proceeded to decide the case in its entirety whereas learned Judges should have taken up the question of admissibility? of documents first as ordained by this Court. The learned Judges, after receipt of the report of Commission, treated it as an incriminating circumstance but we have noticed that this important piece of allegedly incriminating evidence was not put to the accused. 41. ??? Another intriguing circumstance? consists of? the statement of Mr.Ali Sabtain Fazali, learned? Special Public Prosecutor. It was pointed out by the appellants that? his statement was in fact recorded by the learned Ehtesab Bench itself giving up three very important prosecution witnesses including V.A.Jaferi , Javed Talat and Khalil Ahmad. Ostensibly it was done? by the learned Judges with a view to delivering?? the judgment hastily and this statement was merely read over by the Court to the? learned Special Public Prosecutor who admitted it to be correct. This was strange procedure prima facie adopted in order to hasten the proceedings and to reach the foregone conclusion. 42.???? We have considered all the above noted features of the case and? we have also noted the fate of application moved by the learned counsel for? Asif Ali Zardari appellant under Section??? 265-K of Cr.P.C. The atmosphere? must have been highly charged. It can also be imagined when on the intervention of the? Court the proceedings were drastically cut short by the learned Judges; the defence evidence was restricted to the recording? of the statement of a solitary defence witness, namely, Muhammad Nawaz, Superintendent? Landhi Jail as DW-1. Suddenly the Court rises; retires to the Chambers, re-appears after a while and the short order is handed down on 15th April,1999 which appears to have been pre-authored? bearing?? the date as 14th April, 1999, which was scored off and corrected. 43.???? At this stage, it will be pertinent to mention that the Ehtesab Bench? which tried and convicted the appellants consisted of two learned Judges. It appears from the record that Malik Muhammad Qayyum J. being the senior member of the Bench had exerted his influence on the second member S. Najamul Hassan Kazmi J. who being an unconfirmed Judge of the Lahore High Court was sweating for confirmation. We have taken judicial notice of the relevant Notifications issued by the Government of Pakistan in the Ministry of Law, Justice, Human Rights and Parliamentary Affairs dated 27th May, 1997, 26th May, 1998 and 13th May, 1999 that the said learned member of the Bench was appointed as Additional Judge of the Lahore High Court for a period of one year but the tenure was extended for a further period of one year with effect from 28th May, 1998 and he was ultimately appointed as a permanent Judge on 13th May, 1999. 44. ??? In support of this appeal an attempt was made at the bar that the learned Judges were not applying independent mind and had been pressurized and coaxed by the authorities in power to oust the appellants from the arena of politics by securing their disqualification to hold public office. On behalf of the appellants certain audio-tapes and their transcripts were attempted to be brought on the record. It was argued that Mr.Khalid Anwar, the then Law Minister, Mr.Rashid Aziz Khan J., the then? Chief Justice of Lahore High Court, Senator Saifur Rehman, Incharge Ehtesab Bureau and? Malik Muhammad Qayyum J. were clandestinely in league with each other to secure the conviction of the appellants at the behest of the then Prime Minister of Pakistan. The other side took a categorical stance that the audio-tapes were fake and in any event were extraneous for the purpose of determination of the matter in controversy in appeal? 45.???? There is no need to advert to the audio-tapes and their transcripts as there is sufficient material on record which substantiates the allegation of bias. We are convinced that the trial in this case was not fair and on account of bias of the Ehtesab Bench, highlighted in preceding paragraphs, the trial of appellants stands vitiated. 46.???? Resultantly, the titled appeals are accepted, convictions recorded against and?? the sentences awarded to? the appellants are set aside and? the case is? remitted to the Court of competent jurisdiction for trial afresh in accordance with law. This disposes of the connected matters as well.? 47.???? Before parting with the judgment we are inclined to dispose of plea? of Mr. Abdul Hafeez Pirzada, learned Sr.ASC to the effect that Asif Ali Zardari, appellant had already served out the substantive sentence of imprisonment and, therefore, he is entitled to be released from Jail.? As we have already sent the case to a Court of? competent jurisdiction, it would be more appropriate if this matter is agitated before the Court aforesaid. Judge. Judge Judge Judge Judge Judge Judge ISLAMABAD. DATED; 6th April, 2001. APPROVED FOR REPORTING? Top ? Top ? Top Top? Top Top Top Top Top Top Top Top ?