P L D 1955 Federal Court 185 (PLP)

MUHAMMAD MUNIR, C. J.‑This appeal by special leave is from the order of a learned Judge of the High Court of Judicature at Lahore directing the retrial of appel lants‑ Anwar and Nawaz who, with‑ two other men, were charged before the Sessions Judge, Campbellpur, with the offence of murder but were after trial acquitted. In the afternoon of the 14th December of 1951 there was an incident in the hujra of Khans in village Gharshin in the District of Campbellpur, in which one person lost his life and two others were injured. On the side of the prosecution Ghulam Farooq was killed while on the appel lants' side Sardar Bahadur and Faqir received injuries. According to the medical evidence Ghulam Farooq had five incised wounds. Four of these were on the arms which were all simple while the fifth was an incised stab wound on the left side of the back which had fractured the 10th rib near its insertion in the vertebral column, punctured the aorta and, penetrated the abdominal cavity. The death was due to haemorrhage caused by the injury to the aorta. All the injuries were caused with sharp‑edged pointed weapons, the fifth injury being sufficient in the ordinary course of nature to cause death. On the side of the appellants Sardar Bahadur had two contused wounds, one on the left side of the head and the other on the forehead, and two contusion marks, one on the left and the other on the right side of the 'head. The injuries were all simple and caused by a blunt weapon. Faqir had two abrasions on the outer side of the right knee, , both being. simple injuries and having been caused by a blunt weapon, and an incised wound on the back Which ran obliquely upward and inward under the skin and then into the chest cavity. The last injury was grievous and was caused by a sharp‑edged weapon. There were two versions before the trial Judge as to this occurrence. According to the prosecution, Dost Muhammad, the father of Ghulam Farooq deceased, had, on 13th December, 1951, instigated one Nur Muhammad who had been beaten that day by Anwar appellant, to lodge with the police a report of the assault on him. On the following day in the afternoon .Dost Muhammad, while he was returning to his house after saying prayers in the mosque, was abused by Sardar Bahadur, Faqir and appellant Nawaz for his conduct of the previous day and dragged to the hujra of Khans where he was fisted and kicked by them and appellant Anwar. Dost Muhammad's outcries were heard by his son Ghulam Farooq and he came running to the help of his father. On Ghulam _ Farooq's arrival Sardar Bahadur and Faqir left Dost Muhammad, picked up spears and caught hold of Ghulam Farooq by the arms. While he was being so held, Nawaz and Anwar appellants assaulted and wounded him with knives (chhuries). Ghulam Farooq died on the spot. . The defence version of the incident as given by Faqir Muhammad was that he and Sardar Bahadur ‑ were attacked and injured by Dost Muhammad, Ghulam Farooq; Kala and Sarwar Sardar Bahadur supported this allegation and added that the attack on him and Faqir Muhammad was followed by stone throwing by ‑ both parties during which Dost Both parties ‑ had gone to Police Station Hasanabdal, nine miles distant, where at 8‑30 O'clock the same evening Dost Muhammad had given the prosecution version and Sardar Bahadur, who reached a little later, his own version. After investigation, Sardar Bahadur, Faqir, Nawaz and Anwar were produced before a Magistrate, who after enquiry committed them to the Court of Session on the charge of murdering Ghulam Farooq. At the trial before that Court the prosecution produced , Dost Muhammad, Sultan, Faqir and Dilbar as eye‑witnesses of the occurrence. Some other witnesses gave evidence relating to the recovery of a blood stained shalwar and shirt from Nawaz and a similar set of clothes . from Anwar. Both the appellants were also alleged to have produced a chhuri each. In his judgment the learned Sessions Judge criticised the evidence of the eye‑witnesses on the ground of their partisanship and their inability to explain the injuries (if Sardar Bahadur and Faqir, accused, and held that it was unsafe to base a conviction on the testimony of persons who had enmity with the accused unless it was corroborated by reliable and disinterested witnesses. He further found that since some of the prosecution witnesses had admitted that it was Ghulam Farooq who injured Faqir before he himself was assaulted and injured with a knife, the accused had acted in exercise of the right of private defence of persons. He, therefore, acquitted all the four accused. The Provincial Government did not appeal from the acquittal but Dost Muhammad moved the Lahore High Court on the revision side and after hearing the parties Mr. Justice Kayani‑ by his order, dated the 22nd December 1952, directed a retrial of Anwar and Nawaz. A petition for special leave to appeal from the order of Mr. Justice Kayani was presented‑ by Anwar and Nawaz, and leave to appeal was given to them on the ground that the case involved some important questions relating to the exercise of powers under section 439 of the Criminal Pro cedure Code and to the right of private defence and the proper limits , thereof. When the appeal canoe up for hearing before us on the 28th October 1954, it was argued by Mr. Fazal Din, learned counsel for the, appellants, that Mr. Justice Kayani's order did not in its tenor and effect differ from that passed by the same learned Judge in Khairdi Khan's case P L D 1953 F C 223 which was held by this Court in P L D 1953 Federal Court 223 to have created such a bias in the mind of the Sessions Judge who held the subse quent trial that the findings in that case were declared by this Court to be a nullity. Mr. A. R. Changez, learned Advocate‑General for the Punjab, however, questioned the correctness of the decision of this Court in Khairdi Khan'd case, and in view of the importance of the point involve we adjourned the hearing and issued a notice to the Advocate‑General of Pakistan to appear and assist the Court at the hearing. Having heard full arguments in the case and thought over the matter, we now proceed to announce our opinions and the reasons therefor. Before we approach the issue this appeal raises, it is necessary to state the precise grounds . on which Mr. Justice Kayani ordered a retrial. In the arguments before the learned Sessions Judge three possible hypotheses were put forward by the parties on the basis of the evidence on record. These were (1) the prosecution version that Dost Muhammad was forcibly dragged to the hujra where he was being roughly handled when Ghulam Farooq deceased arrived armed with a knife and in defense of his father struck Faqir with a chhuri after which' he was wounded with knives by Anwar and Nawaz. appellants; (2) the defence version that the deceased, his father and certain other persons came to the hujra having conspired and planned to attack some of the accused; and (3) that both parties indulged in a free fight. The learned Sessions Judge rejected the theory of a free fight and after discussing the prosecution evidence held that he could not accept it because the prosecution witnesses were intrested and did not explain the injuries to Faqir and Sardar Bahadur, accused. He further agreed with the defence counsel in his contention that even if the prosecution evidence were to be relied upon he accused must be held ‑ to have acted in exercise of the right of private defence of person.. Dealing with these three possible aspects of the case Mr. Justice Kayani held . in revision that if the prosecution evidence was to be relied upon no question of the accused having acted in exercise of the right of self‑defence could arise because Ghulam Farooq deceased had the right to injure . Faqir in order to release his father Dost Muhammad from the grip of persons who were assaulting him. As to the third hypothesis the learned Judge remarked that no right of self‑defence accrued to either party in a free fight. He was unable to discover in the judgment of the learned Sessions Judge any finding that the story told by Sardar Bahadur in his own First Information Report and , set up by him in defence was true. Therefore the only hypothesis that was left for con sideration, according to the learned Judge, was whether the prosecution version was true. He pointed out that the fact that the prosecution witnesses did not explain the injuries of Faqir and Sardar Bahadur was not in itself sufficient to disbelieve them. In the light of the legal principle that if an accused person sets up a plea of self defence it is for him to prove it, he observed that if the case had been rightly approached the two appellants would "have been found guilty of some offence." He did not order the retrial of Sardar Bahadur and Faqir presumably because they had not taken part in the assault on Ghulam Farooq, and from the evidence it could not be inferred with any degree of certainty that the killing of Ghulam Farooq by the two appellants was in prosecution of any common object shared by Sardar Bahadur and Faqir. The contention of the learned counsel for the appellants is that the order of Mr. Justice Kayani is so clear in its implications that the Sessions Judge,, who has to, try the appellants will have no independence of judgment and would convict them not because he is satisfied of their guilt no the evidence but because Mr. Justice Kayani has expressed himself so strongly against them that the trial Judge will merely be concerned in discovering further reasons from the evidence . in order to record findings in conformity with the implied conclusion of Mr. Justice Kayani. He further argues that on the authority of Khairdi Khan's case the trial would be a farce, and its result a nullity. These apprehensions and the contentions raised on .their basis. by the learned Advocate for the ,appellants are refuted by the learned Advocate‑General of Pakistan and by the learned Advocate‑General of the Punjab, both of whom support the order of retrial and contend that Khairdi Khan's case was wrongly decided. Thus the points that arise for our determination are :‑ (1) whether this appeal is. , governed by the principle of Khairdi Khan's case (2) if so, whether the law declared in Khairdi Khan's case that bias in a judge vitiates all proceedings is correct ? and (3) whether the order of retrail in the present case is illegal or so grossly improper that we should exercise ,our special jurisdiction to vacate it ? To determine the first of these questions it is necessary to make a detailed refernce to Khairdi Khan's case and to state the principle on which it was decided. The fact of the case were as follows :‑ On 4th October 1948 either at midday or a little before midday two men were attacked in a field in the area of village Malikmala in the district of Campbellpur. Of them Sher Bahadur died on the spot, while Khan Bahadur died a few days later, both' in consequence of the injuries which were caused to them by sharp‑pointed weapons. For this double murder 4 persons, namely, Khairdi Khan and Dilawax Khan who were brothers, Jahandad Khan who was their father‑in‑law, and Sher Muhammad, the son of Jahandad Khan, were tried by Mr. Inayat Ullah :Khan, Sessions Judge, Campbellpur, who had only a few month's experience of criminal work. At the trial, the prosecution relied on three witnesses,. Mst. Sahibji, Hashim bpd Saeed Muhammad and two dying declarations of Khan Bahadur, one of which had been recorded at the hospital after the patient was certified by the doctor to be in a fit condition to make a statement. The accused were, however, all acquitted. In writing the judgment and arriving at his conclusions and the defence of the accused, and then, after wetting out the arguments of the learned counsel including the con tention that only two persons had taken part in the incident, he proceeded to remark : "Lengthy arguments have been addressed in the case, and I have carefully considered the entire evidence and all the points . urged on the two sides, and I think the contentions raised on behalf of the accused are substantially correct. "It is a pity that in the circumstances two murders will have to go unpunished. But that is something that cannot be helped. And for this the prosecution them selves are responsible. If they choose to exaggerate and try to substantiate their , case by the evidence of false witnesses, or try to improve ~t by the introduction of false details or. by withholding some material facts, they make the task of the Court very difficult, and it .is impossible to .accept such evidence and to hang people when the chances are that there has been exaggeration on the part of the prosecution, and it is evident that some at least out of the accused had been falsely impli cated‑ In such cases it is difficult to be sure about the guilt of any one or more of them at all, and, as has been repeatedly laid down, it is much better that some of them who were really guilty might escape, then that those who are innocent should be punished. It is to be borne in mind that there is no midway course open to the Court. The statements. of the P. Ws. involved all the four accused equally. If their statements are to be accepted, the only possible sentence is the extreme penalty of death, which a Court would consider hundred times before imposing it," After these observations he went on to prepare a long catalogue of the defects in the prosecution case listing therein nine items without indicating their mutual relationship. He found that Hashim was not, as claimed by the prose cution, an eye‑witness of the crime. About Mst. Sahibji, the mother of the two deceased, he said that . he was not at all sure whether she was present at the scene but that his impression was that he too was not an eye‑witness and was only drawing upon her imagination. Saeed Muhammad, he thought, was telling the truth when he deposed that one of the injured persons, Khan Bahadur, came running to this hemlet is a badly wounded condition, but he refused to accept this witness's evidence that shortly thereafter the four accused also came to the hamlet demanding him to surrender Khan Bahadur. He held it proved that Khan Bahadur made both the dying declanaiions, but he thought that the‑ declarant was not expecting death and had been told and knew' what was to state. Re garding the report which was lodged by Mst. Sahibji at 6‑30 p.m. the same day at police station Hazro, at a distance of 6 miles from village Ghaur Ghirshti, the village of the parties, which was self about 4 miles from the place where the occurrence had taken place, he found that it was de after Mst. Sahibji had been told that he was to mention the four accused persons as the culprits and this he inferred from the mere fact that there was two or three hours delay in the report. The accused in that case were near relations of the two deceased persons, and at the date of the murder a suit for pre‑emption by the accused against Sher Bahadur deceased was pending. The prosecution had also alleged an altercation between the accused and the two deceased over some cattle trespass on the previous day. The Sessions judge thought the trespass was a trivial matter, while the filing of the pre‑emption suit showed that the accused could have no grievance because they had acted like peaceful citizens in having recourse to lacy to recover possession of the land from Sher Bahadur deceased. There was evidence that Khan Bahadur had produced a spear and that Jahandad Khan, when arrested, was wearing a blood‑stained shirt. The Sessions Judge held that the production of the spear was a mere fiction, land that the evidence relating to the taking into possession of the shirt could as well be concocted. He then summed up his reasons thus 'To um up there is no satisfactory motive; the most important alleged eye‑witness Mst. Ismat has been given p; as regards the other two alleged eye‑witnesses, Hashim and Mst. Sahib ji the former was evidently not present, and the latter was also most probably not there ; the First Information Report was made after a considerable delay, and it appears after deliberation and consultation ; and the dying declaration of Khan Bahadur too wasra result thereof, and as such it was not at all entitled Many weight ; and the investigation of the case was vitiated, and the prosecution had introduced several false particulars ; and it was evident that some at least out of the accused had been falsely implicated, and in the circumstances it is not at all safe to rely on such evidence." He gave no reasons whatsoever for the finding which he repeated twice in his judgment that some of the accused had in fact been falsely implicated, nor any indication of who they were and why the murder could not have been committed by four men. Against this order of acquittal Mst. Sahibji preferred to the High Court of Lahore a petition for revision which was accepted by Mr. Justice Kayani by his order dated the 2nd February 1950 and for the reasons that he gave therein he ordered a retrial. After referring to the evidence on record the learned judge discussed the reasons for which that evi dence was held to be unreliable by the Sessions Judge and remarked that the learned Sessions Judge's appreciation of the evidence was "perverse". The main reason for setting aside the order of acquittal was stated by him in the following words "The main thing is that an attack was delivered on Khan Bahadur and his brother in the light of day when they were neither sleeping nor drowsy, and since one of them survived the attack for some time, he ought to be able to say who his‑ assailants were. Whether or not Khan Bahadur believed that he was dying, the fact remains that his state ment has the status of a dying declaration ‑and that it can be accepted as evidence without corroboration so long as it is not found to be‑ in disaccord with reality. Such reasons as. the learned Sessions Judge has given cannot brush aside the broad fact that Khan Bahadur was not likely to sub stitute his assailants by other persons. If the learned Judge had been definitely of the opinion that two of the accused persons were innocent but that he could not decide who they were, he might have properly given the benefit of doubt to all, but there is no such decision. The finding is that the evidence is tainted, that although Khan Bahadur saw his assailants, he could not be believed because he had consulted his mother. This, in my opinion, is a perverse view. As regards the false implication of some of the accused, which appeared‑ to the Sessions Judge to be evident because counsel for the defence so contended, Mr. Justice Kayani said that the alleged delay in the First Information Report was in the circumstances of the case not very material to the guilt of the accused because all that could be argued was that there was a danger of some innocent persons having been included as accused, but that the result could not be to exclude the actual assailants and to substitute for them persons entirely unconnected with the attack and that since each of the deceased persons had received a large number of injuries. Sher Bahadur' having 8 incised wounds and two abrasions and Khan Bahadur 7 , injuries including 5 incised wounds, and neither of the deceased persons was a youth, old, or infirm, there was nothing improbable in four persons having taken part. in the assault. The retrial was held by a very Senior Sessions Judge, Mr. Ahmad Khan, who wrote a detailed judgment dealing with all the important points that arose in the case and convicted all the four accused of murder. From this order the convicted persons appealed to the High Court and, a Division Bench, after a full examination of the evidence, affirmed the con victions. The High Court found that there was some doubt about the presence of Hashim Khan but as to Mst. Sahibji it held her evidence to be true because it was corroborated in two important particulars which could only be known to a person who was present at the time of the assault. As regards Saeed Muhammad, it dealt with the criticism levelled against his evidence by the learned counsel for the appellants and held that he had not the slightest motive in helping the prosecution or seeing the appellants walk to the gallows. As his name had been mentioned in the First Information Report and is state ment recorded the same night, it accepted ‑his evidence' as that of a wholly trustworthy witness. It held both the dying declarations proved and considered them to be an important piece of evidence against all the appellants. The appeal was there fore dismissed. The convicts applied to the Federal Court for . special leave to appeal which was granted to them by the order dated the 14th January 1952. The appeal came up for hearing before Abdul Rashid C. J. and Shahabuddin and Cornelius JJ, who accepted it, and set aside the convictions on the ground that Mr. Justice Kayani's order of retrial had made Mr. Ahmad Khan a biased Judge and that the judgment of conviction recorded by him was therefore a nullity, with the result that there was neither any valid judgment in existence nor any conviction or sentence. Abdul Rashid C. J. who wrote .a separate judgment enumerated the material findings come to by Mr. Inayat Ullah Khan and after mentioning the reasons given by Mr. Justice Kayani for not accepting those findings held that the order of Mr. Justice Kayani amounted to a direction to convict that in merely stopped short of finding the accused guilty and passing sentence on them and that no Sessions Judge Subordinate to the Lahore High Court could remain unbiased after reading that order. The learned Chief Justice approvingly referred to two Full Bench. judgments of the Lahore High Court, namely, Partap Singh v. Harnam Singh and others (1 L R 1942 Lah 125) in which that Court had ruled that though the discretion to order a retrial, provided a finding of acquittal is not converted into one of conviction, was legally unlimited, the High Court seldom exercised that discretion except where the record was incomplete or there was a flaw in jurisdiction, or where the finding was manifestly wrong, or perverse, and that an order of acquittal should not, as a rule, be interfered with merely because the High Court disagreed with the findings of the lower Court, and In the matter of Shaikh Abdul Karim, an Advocate (P L D 1950 Lah 439), where it was observed that the High Court will order a retrial only if the case is of such a singularly exceptional character that unless a retrial were ordered a grave and irremediable injustice must be the result, and that such result can be apprehended only where the trial has been contrary to some fundamental rule of procedure or where the acquittal is based on a view of the evidence which no reasonable judicial officer, anxious to do justice, could possibly take ; though he preferred to ground his judgment on the decision of the Supreme Court of India in Logendranath Jha and others v. Shri Polailal Biswas (1951 S C R 676) in which that. Court had ruled that in dealing with a revision petition by a private party against an order of acquittal, the High Court cannot in the absence of any error on a point of law re‑appraise the evidence and reverse the findings of fact on which the acquittal is based. The priSnciple that can be gathered from the judg ment of the learned Chief Justice is that whereas a High Court would be acting rightly in ordering a retrial where the view of the evidence taken by the acquitting Court is perverse or such as no judicial officer would take' the High Court cannot in revision re‑appraise the evidence on which a finding of fact is based and reverse that finding if it constitutes the basis of acquittal. The second rule, and we are concerned in the present case with that rule, which that; judgment lays down quite clearly is that if the High Court while ordering a retrial has in its order expressed its own view of .the evidence, such order has the effect of creating a bias in the mind of the trial Judge and such bias, renders the Judge's decision a nullity, irrespective of the merits of the decision. There are several observations to this effect in that judgment. One such obser vation, namely, that " no Sessions Judge Subordinate to the High Court could remain unbiased, after reading the findings given by the High Court" has already been mentioned. The other observations are to be found in that part of the judg ment where the Advocate‑General took up the point. that even if .it were assumed that the order of retrial amouned to a direction to the Sessions Judge to convict, it ‑was the Sessions Judge alone who could be said to have approached the case with a biased mind and that the same could not be said in respect of the Judges of the High Court who had heard the appeal against the order of conviction passed by Mr. Ahmad Khan at the second trial. Rejecting this argument the learned Chief Justice observed. " It was urged, therefore, that the order of the Division Bench should not be upset. In my opinion, this contention is based on a misapprehension. If Mr. Ahmad Khan was not an unbiased. Judge, the trial in his Court was completely vitiated. The trial is the foundation of the case, and if the trial has been vitiated, the judgment in appeal which is. the superstructure built on the foundation, cannot stand." And then after referring to the case of Adan Haji Jama and others v. The King 194.8. A C 2251) in support of the proposition just set out, the learned Chief Justice went on to say " Once mind of the trial Judge has been affected by any bias, the proceedings in the Court of such a Judge have no legal validity whatsoever," and expressed his. decision to upset the judgment of Mr. Ahmad Khan in the words. "In view of the observations contained in the judgment of Mr. Justice Kayani, I cannot regard Mr. Ahmad Khan as an un biased Judge. His judgment must be completely eliminated, and if his judgment is discarded,' the hearing of the appeal in the High Court cannot, in any way, benefit the prosecution.." It should be remembered that the order of retrial in Khairdi Khan's case, was passed by .Mr. Justice Kayani at a time when the jurisdiction to interfere in criminal matters had not been conferred on the Federal Court by the Privy Council (Abolition of Jurisdiction) Act, 1950, and still vested in the Privy Council. The order of retrial could not,, therefore, be interfered with by the Federal, Court. This aspect was present to the mind of the learned Judges and was expressly mentioned in the judgment, but the same result was achieved by them by holding that though Mr. Justice Kayani's order could not be, vacated, having become final by its not, having been appealed to the Privy Council, that order had created a bias in the mind of Mr. Ahmad Khan who had held the retrial and that fact rendered the subsequent trial and its result hat nullity. Nor, it must be noted, did the learned the Chief Justice find that the judgment of Mr. Ahmad Khan or of the High Court of appeal was in fact wrong on the evidence on record or that bias in the mind of Mr. Ahmad Khan could be inferred from the apparent incorrectness of the conclusions. reached by him. He rested his whole judgment on the supposed doctrine that a strongly‑worded order of retrial makes the Judge who holds the trial a biased Judge, and that irrespective of the correctness or otherwise of his conclusions, his judgment , has to be treated as void. . The judgment of Shahabuddin and Cornelius JJ. Differs from the judgment of the learned .Chief Justice only in one respect, namely, the finding arrived at by them that Mr. Ahmad Khan's mind had in fact been affected by the Judg ment of Mr, Justice Kayani. In the course of their judgment they said "There seems to lie no escape from the conclusion that Mr. Ahmad khan's approach to the case and the in ferences which he felt himself enabled to draw from the evidence which had been adduced before him were determined, or, as it were, set in a mould, by the views of Mr. Justice Kayani. Nothing else can explain his failure, to take, the slightest note of many weighty considerations, plainly arising in the most natural way out of the circumstances and the evidence in the case, which had been so ably canvassed by Mr. Inayat Ullah Khan Since the order of retrial was intended only to procure a reconsideration of the evidence, the duty of dispensing fair and impartial justice required that the Judge conducting the retrial should take all. Considerations arising out of the case into account in arriving at his final decision . . . . . ... . Mr. Ahmad Khan's conclusions seem to us to follow a set pattern. No sign of any effort to apply to the facts and the circumstances of the case an independent mind, that is to say, a mind which could operate outside the lines laid down in Mr. ‑ Justice Kayani's orders, appears in his judgment. It is entirely true to say that he conducted and decided the case in the manner of a mariner sailing on a marked chart". After this finding, this grounds for quashing the convictions were precisely the same as had been stated by the learned Chief justice, and there is no indication in their judgment that they dissented from or did not agree with the learned Chief Justice's view. Nor did they accept the conten tion of the learned Advocate‑General that the re‑examination of the evidence by the High Court at the hearing of the appeal being without any prepossession and free from bias, the conviction could not be set aside except on the merits. In repelling this contention, they observed "On this view, the appeal would appear to be concluded in favour of the appellants, but it has been represented before us that the flaw should be deemed to have been corrected and compensated for by the re‑examination of the evidence which took place at the hearing of the appeal in the High Court. The conten tion assumes that a flaw of this ,nature is curable in appeal, and as to that there can be no two opinions that anything in the nature of a serious defect in the instrument of Justice, as operating on a Court of first instance, vitiates all subsequent proceedings. Thus, if it be shown that the Judge was interested in one of the parties to the case before him, or that he had received gratification for the purpose of deciding the case in a particular way, or that he was under some strong influence guiding his decision in a particular direction, the whole trial would thereby be rendered a nullity, not so much by reason of the danger of his utillizing fallacious arguments . to reach a particular end, but because of the impossibility of believing that in the circumstances, there was a fair trial of the cause. Where it is plain that the Judge at the trial felt himself debarred from investigating 'or considering certain very plain and congant arguments appearing in favour of the defence; which had been set out lucidly in the judgment recorded at the first trial, it is clear that he did not approach the case with an open mind, and in those circumstances it is idle to scrutinize the arguments , set out by him for validity and logic. On the same reasoning; there is no profit to be derived for the interests of Justice in considering whether all or any fallacies appearing in his judgment have been considered or compensated for in the judgment of the. appellate Court. The trial was one‑sided and so was the judgment delivered in the trial Court. Such a defect cannot be cured by a rehearing of the case in appeal, where the appellant was limited to showing that the grounds of conviction were bad in themselves, or in relation to the record of evidence: In the exhaustive en umeration of irregularities by Criminal Courts contained in Chapter XLV of the Criminal Procedure Code, there is no provision which can be stretched to cover a case of bias in the mind of the Judge. The omission goes to confirm the view that a fault of this kind avoids the proceedings, beyond all hope of remedy. The learned Judges recorded no finding that the judg ment of Mr. Ahmad Khan or that of the High Court in appeal was in fact wrong on the merits ; they considered the mental attitude of Mr. Ahmad Khan which was found to have been brought about by the judgment of Mr. Justice Kayani as sufficient for vacating the result of the second trial including the judgment of the High Court. Learned counsel for the appellants contends that Mr. Justice Kayani's order in the present case is exactly of the same character as was passed by him in Khairdi Khan's case, that it has the effect of incapacitating every Sessions Judge in the Province to bring to bear on the evidence a fresh mind with complete independence of judgment, and that therefore the position in no wise differs from the one in that case except that there the retrial had taken place, whereas in the present case it is about to take place. He urges that if an order of retrial has the effect of disseminating bias throughout the subordinate judiciary competent to hold the subsequent retrial, or if such .order has even the tendency to create a bias against an accused person, the retrial should not be permitted to take place because its result will have to be vacated on exactly the same grounds as Mr. Ahmad Khan's judgment was vacated in Khairdi Khan's case, namely, that the Judge who holds the retrial will not feel himself free to come to any conclusion which may be apparently opposed to the opinion of Mr. Justice Kayani or may be in accord with the view of evidence that the acquitting Judge took. After comparing the order of retrial iii the present case with that in the case of Khairdi Khan I am unable to discover any basic distinction between the two. In Khairdi Khan's case the acquitting Sessions Judge had found that there was delay in the First Information Report, that the maker of the First Information Report and Khan Bahadur deceased whose statements were admitted as dying declarations had the opportunity to consult and that in consequence some innocent persons had likely been implicated. After examining the evidence Mr. Justice Kayani expressed the view that a reasonable explanation existed for the delay, if any, in the First Information Report and that assuming that there was delay and that Mst. Sahibji, the maker of that Report, and Khan Bahadur deceased had the opportunity to consult each other, it was impossible that Khan Bahadur, who in view of the several injuries caused to him in broad daylight must have seen his assailants, 'should not have mentioned them in his statements but substituted for them persons entirely unconnected with the attack, that all that could possibly be said was That Khan Bahadur might have added some innocent persons. in the list of culprits that there was no evidence before the Sessions Judge that any in nocent person had in fact been included and that bearing in mind the several injuries caused to each of the deceased persons there was nothing unlikely in their having been attacked by four persons. In the present case the order of retrial proceeds on the view that there were only three possible hypotheses before the Court one of which could not be accepted in law, the second was not supported by any evidence, and that thus the third, namely, the version alleged by the prosecution alone was left for consideration, and that if the case were approached in this manner, .Anwar and Nawaz might be found guilty of some offence. If the order of retrial in the former case made the Sessions Judge, who subsequently tried the case, a biased Judge, one cannot escape the con clusion that the order in the present case must have a similar effect. Thus if Khairdi Khan's case was rightly decided, the decision in the present case in order to be consistent with the principle propunded in that case must be to vacate the order of retrial. Therefore the question that arises is whether Khairdi Khan's case was rightly decided that an order of retrial which contains in itself express or implied views on the evidence having a bearing on the guilt or' innocence of the accused on the charge of which he has been acquitted creates in the mind of the Judge who holds the retrial a bias which has the effect of rendering his Judgment void irrespective of the correctness or otherwise of his conclusions. In the, arguments before us it was conceded by the parties concerned, and without any hesitation, that Khairdi Khan's case does not lay down the correct law, when it declares that bias simpliciter, of whatever kind, has the effect of vitiating all proceedings held before a biased Judge and that all adjudica tions made by him are void by the mere fact of his being subject to some extra judicial influence, however correct reasonable, or well‑founded his conclusions may be. Mr. Fazal Din, learned counsel. for the appellants, admits this and so does the learned Advocate‑General for the Punjab who has drawn our attention to some situations to which the application of the doctrine of Khairdi Khan's case may produce fantastic results and make, the administration of justice in such cases impossible. , We have had the benefit of a full argument from the learned Advocate‑General of Pakistan which I shall presently proceed to notice, but I may mention here that he also does not support the doctrine of bias as enunciated in Khairdi Khan's case. ' The principle that Khairdi Khan's case lays down is that where proceedings are held before' a biased Judge the entire proceedings are void and so is the judgment, decree, or sentence, and this irrespective of the correctness or other wise of his adjudication. It flows from this proposition as a necessary consequence that a party may prove bias in a Judge in any way in which a fact may be proved and that on proof of such bias the Judge's judicial act which is impugned by that party shall have to be treated as void, and therefore not binding on the complaining party. , The rule in Khairdi Khan's case 'is not limited to the bias produced by the judg ment of a Superior Court, but 'extends to other cases which are expressly mentioned in the judgment as, for instance, where bias results from (1) the Judge's interest in one of the parties ; (2) receipt of , gratification by the Judge for the purpose of deciding the case .before him in a particular way ;. and (3) any strong influence guiding the Judge's decision in a particular direction. If, therefore, the enumeration of bias in Khairdi Khan's case is not exhaustive, as it is not, because of the inclusion of any strong influence guiding the decision of the Judge in a particular direction, it must follow that whether the decision arrived at is correct or not, the result of a whole trial may be avoided by mere proof of the fact that the Judge's mind was working under, some strong influence, and that however correct his judgment in law or on facts maybe, it is a mere nullity binding or affecting nobody. The rule that bias in a Judge, whether it has its origin in bribery or it arises from any other motive, is a circum stance which vitiates the trial and its result is stated in Khairdi Khan's case to rest not‑. only on a general principle but also to be deducible from the judgments of the Privy Council in Adan Haji Jama and others v. The King and Turnahole Bereng and others v. The King AIR(36)1949PC172 , I shall presently discuss whether there is or is not any general principle recognized by our law or any other systems of jurisprudence that proceedings, held before a biased Judge are a nullity, but I should like to point out here that neither of the two precedents before the Privy Council relied on in Khairdi Khan's case is an authority for the proposition sought to be deduced there from. Adan Haji Juma's case had gone to the Privy' Council on appeal from a judgment of the Protectorate Court of the Somaliland Protectorate sitting as a Court of Appeal which had dismissed the appellant's appeal from a judgment of 'that Court in exercise of its Original Jurisdiction. By the Adminis tration of Criminal Justice Ordinance, 1926, of 'that Pro tectorate it was necessary that the prosecution of an accused before the Court of Original Jurisdiction should be conducted by a prosecutor. No prosecutor, however, was appointed in that case, and the Judge before whom the ‑ trial took place performed the duties of the prosecutor inasmuch as he himself examined the witnesses for the prosecution though he did not cross‑examine the witnesses for the defence, and the main question in the appeal before the Privy Council was whether the trial was vitiated by the failure of a prosecutor to conduct the prosecution. The Privy Council held that the absence of a prosecutor, involving as it did, the breach of a statutory provision, amounted to an illegality which vitiated the whole trial. The precise reason for this conclusion is stated at p. , 233 . of the Report where Lord Uthwatt said : "That course (opening the case for the prosecution and examining the prosecution witnesses) was not followed, and the Judge himself undertook the duties of the prosecu tion. This is the real vice in the trial. Breaches of particular . provisions of the ordinance might have been cured under section 393, but the combination in one person of the duties of prosecutor and judge in their Lordship's view, prevented the trial from being one conducted substantially in the manner required by the Ordinance. The accused did not have the protection to which they were entitled under the Ordinance, namely, to be tried by at judge whose mind was not, and could not have been, affected by assuming the duties of a prosecutor. The curative provisions of section 393 of the Ordinance (which is expressed in substantially the same terms as section 537 of the Indian Code of Criminal Procedure) cannot be called in aid to support a trial down in the Ordinance (Pulukuri Kotayya and others v. King‑Emperor L R 74 J A.

65. Their Lordships have. no doubt that the trial Judge did his best to be scrupulously fair to the accused, but it is impossible to be sure that a Judge, who himself examines the prosecution witnesses, escapes an unconscious bias in favour of accepting their evidence. The Judge rightly refrained from cross‑examining the defence witnesses, but it would be difficult for him unconsciously avoid discounting some of their evidence on the ground that it might have assumed a different aspect if subjects to cross‑examination. The chance, perhaps a small one that some witnesses might have impressed their veracity on the Court by the manner . in which they stood up to cross‑examination, was lost to the accused. It has been said many times that it is necessary not only that justice be done, but that it may be seen to be done. The accused and their friends can hardly have felt assured that impartial justice would be meted out to them by a Judge who was acting as prosecutor." With these observations the Privy Council advised His Majesty to quash the conviction of and sentences passed on the appellants and to order them to be acquitted. It is obvious from the above‑mentioned statement of facts and the reasons given by the Privy Council for their decision that the true ground on which the convictions were quashed was that certain statutory provisions of the Administration of Criminal Justice Ordinance, 1926, of the Somaliland Pro tectorate had not been complied with that the result of the non‑compliance was .that the trial had been conducted in a manner substantially different from that laid down in the ordinance, that the illegality committed was not a curable irregularity but such as might have produced in the mind of the Judge an unconscious bias in favour of the prosecution and deprived the accused of the chance, however small, of some defence witnesses impressing their veracity on the Court by the manner in which they might have stood up to cross examination by the prosecutor. This case cannot, therefore, be treated as an authority for the proposition stated in Khairdi Khan's case that mere bias irrespective of the illegality which gives rise to it can be a factor vitiating the whole trial. In Tumahole Bereng's case one of the assessors, before he sat at the trial, had accompanied the investigating officer to the scene of the alleged crime and acquainted himself with the knowledge of physical features of the spot and certain material aspects of the Crown case in the company of the approvers and the Crown witnesses but in the absence of the accused. The Privy Council strongly disapproved of the conduct of the assessor, Lord MacDermott taking the opportunity to observe : " As counsel for the Crown said when dealing with this aspect of the case, it has not been shown that what Mr. Drier did before the trial prejudiced the appellants. But it might well have been thought, when his activity became known, that he had come to Court with a biased mind in the sense of having formed a definite view as to what had occurred' or as to the credibility of the witnesses whom he had observed or questioned. It might also have been thought that he had been told more than could be legally proved, or that his interrogation of an accomplice might have had an effect upon the story as told by that witness the words at the trial. All this, of course, is in the realm of conjecture but where the irregularity complained of may reasonably engender suspicions of this nature it cannot be left out of account, Particularly when as here, the opinion of the officer could have been communicated to the Judge in private. In the case of Mahlikilili Dhalamini v. The King 1942 A C 583 to 'which reference has already been made, Lord Atkin delivering the judgment of the Board. said "Prima facie, the failure to hold the whole of the pro ceedings in public must amount to such a disregard of the forms of justice as to lead to substantial, and grave injustice within the rule adopted by this Board in dealing with criminal appeals." In the opinion of their Lordships, the same may well be said of the irregularity under consideration. In the cir cumstances and in view of what has already been said the appeal in its other aspects it is unnecessary to add more save to express the hope that the observations of their Lordships may serve to prevent the recurrence of such a procedure." The Privy Council did not in that case vacate the judg ment merely on the ground of the bias with which the assessor had set at the trial, but they dealt with the whole evidence and came to the finding that on the merits the conviction was unsustainable. There is not one word an the judgment of the Privy Council tending to show that they accepted the appellant's contention that the assessor's conduct "constituted so grave departure from the due and orderly administration of justice that its consequence is to vitiate the trial and judgment." If the appellants had been right in their con tention, the Privy Council would have vacated the judgment on that ground alone. But as already pointed Out, the Board, contrary to the course adopted in Khairdi Khan's case, decided the appeal on the merits and not on the ground that the judgment of the Court of original jurisdiction was void or a nullity. It is, therefore, impossible to treat this judgment of the Privy Council as laying down the principle that bias in the mind of an assessor vitiates the trial and the judgment. In fact, if that judgment is at all relevant, it is opposed to the principle of Khairdi Khan's case. It is, of course, a grave matter that a judge or a juryman or an assessor who has a biased mind should participate in a trial but that is not to say that if any such person has taken pate in the trial, the proceedings and the judgment are a nullity in law. Some continental system of jurisprudence provide the manner in which the objection .can be taken to a trial, 'before its commencement, on the ground of bias on the part of a judge. or a juryman, but none of these, as far as I know, recognises the rule that after the trial has taken place the judgment ' can be vacated merely on the ground of such bias. Under those systems, objections to a " judge or a juryman have to be taken by way of "challenge before the commencement of the trial, but once the trial concludes the result thereof cannot be avoided by subsequent proof of bias unless such bias is established to the satisfaction of the appellate Court from the. decision on the merits or the pro ceeding in the case. Under our system such challenge to a judicial officer has to. be made by making to the High Court an application for transfer of the case on the ground that a fair and impartial enquiry or trial cannot be had before him. This provision clearly indicates that all objections to the fairness or impartiality of a Judge have to be made in order to secure a transfer of the case from that officers, Court, and that if the application for transfer fails and. the trial proceeds and results in a verdict, the verdict cannot be called in question simply on the ground that the judge was partial or unfair, irrespective of whether such .allegation is or is not borne out by the decision itself. It was observed in Khairdi Khan's case that in the exhaustive enumeration of irregularities by Criminal Courts contained in Chapter , XLV of the Cr. P. C. there is no provision which can be stressed to cover a case of bias in the mind of a Judge, and that this omission goes to confirm the view that a fault of this kind avoids the proceedings beyond all hope of remedy, but it seems to me that the conclusion that proceedings before a biased Judge are void can only be drawn from some statutory provision, and beyond section 526 of .the Code of Criminal' Procedure, no relevant provision appears to exist in our law. Mr: Faiyaz Ali, Advocate General of Pakistan, has drawn our attention to section 556 of the Code of Criminal Procedure which provides that no Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is, a party or ,personally interested. On the strength of this section he contends that though a trial before a Judge or a, Magistrate Who comes within the description of that section may be void, other instances of bias do 'not vitiate a judgment and the party against whom such judgment has been rendered can only attack it on the merits, including, of course, in the grounds of his attack the allegation that the Judge did something irregular at the trial which he could not or should not have done as a judicial officer.' It is unnecessary for me to consider the question whether a trial held before a Judge or a Magis trate, contrary to the provisions of section 556, is void because that question does not‑ arise in the present case, but I have little hesitation in agreeing with Mr. Faiyaz Ali's contention that a verdict by a Judge who does not come within the description of section 556. is not void merely on the ground of his bias and that unless such verdict is found by a Superior Court to be erroneous and therefore set aside, it is binding on the parties. As regards the bias arising from bribery, reference may usefully be made to' Lord Bacon's impeachment before the House of Lords. Though judicial bribery was rampant in the England of Bacon's times, the practice was pronounced as most culpable and disgraceful. In one of his vigorous sermons Hugh Latimer thus denounced this vice : I am sure this is scala inferni, the right way to hell, to be covetous, to take bribes, and pervert justice. If a Judge should ask me the way to hell. I would show him this way. First, let him be a covetous man ; let his heart be poisoned with covetousness. Then let him go a little farther, and take bribes ; and, lastly, pervert judgment: Lo, there is the mother, and the daughter, and the daughter's daughter. Avarice is the mother ; she brings forth bribe‑taking, and bribe‑taking perverting of judgment. There lacks a fourth thing to make up the mess, which, so help me God, if I were a Judge, should be hangum tuum, a Tyburn tipped to take with' him ; and it were the Judge of the King's Bench my Lord Chief Justice of England, yea, an it were my Lord Chancellor himself, to Tyburn with him. He that took the silver basin and ewer for a bribe, thinketh that it will never come out. But he may now know that I know it, and I know it not alone ; there be more beside me that know it. Oh, briber and bribery ! He was never a good man that will so take bribes. It will never be merry in England till we have the skins of such'. Thus though the perverting effect of bribery on adjudications is obvious. Lord Bacon's case is instructive in this that though for bribe‑taking the "Lord Viscount St. Alban was sentenced to a fine of 40,000, imprisoned in the Tower, declared incapable of holding any public office, place, or employment, disqualified from sitting in Parliament and forbidden from coming within the verge of the Court, on the strength of his own confession to 23 Articles in the charge of corruption, yet in the legal literature of the 'period there is no record that any of the counsel or the parties to those cases ever thought of taking proceedings to have the decision of the Lord Chancellor vacated on the ground of receipt of illegal gratification. In fact, it was. the prosecution case itself that the Lord Chancellor had pronounced a "killing decree" against Aubery who under advice from his counsel had presented E100 to the Chancellor and that another cause had been decided by the 'Chancellor against Egerton who through Sir George Hastings and Sir Richard Young had presented 400 to him. Instances of this . nature are not lacking in this country .where officers, judicial or executive, take bribes for doing the right thing and whose judgments or orders are not at all affected by the receipt of illegal gratification. , It would not, therefore, be right to say that where it is proved that a Judge has taken a bribe, his judgment must be held to be a nullity irrespective of the correctness or otherwise of his decision. If the rule were that bias alone vacated a judgment, it would be impossible to avoid the result that bias may be proved by independent evidence, ,and nothing would be more productive of confusion than the practice, if it were declared legal, of disappointed litigants slinging mud at, and levelling charges of bias and corruption against, Judges who had pronounced judgments against them. This would be a lamentable state of affairs indeed, bound to bring the whole administration of justice into disrepute; for on that view of the law Judges would, not be Judges doing justice between party and party but, accused persons who for every judgment they rendered will have to establish their honesty and integrity. It is obvious that such a. rule cannot form part of the law of civilized communities. Nor can I subscribe to the proposition that every judgment of the High Court, no matter in what circumstances it is given, has 'the effect of producing a bias in the mind of the sub ordinate judicial officer who is subsequently required to try a person to whose case some observations in the judgment are applicable. This can be illustrated by several instances. Suppose,, for example, that the prosecution alleges in a particular case that in pursuance of a conspiracy a person was murdered by A, B, C, D and E, the fatal blow in pro secution of the common object of the assembly having been delivered by E. After the crime all the conspirators abscond except A who is tried on the allegation that he as a member of the unlawful assembly is responsible' for the death of the deceased caused by E. He is acquitted by the Sessions Judge, but the Government appeals and the High Court accepts the prosecution case and convicts A on the finding that the death of the deceased was caused by E in furtherance of the common object shared by A and others. Subsequently, the absconders are arrested and tried. As a matter of law, the judgment of the High Court is not relevant against B, C, D, and E, but if the doctrine of bias propounded in Khairdi Khan's case is correct, no Sessions Judge subordinate to the High Court would have an unbiased mind to try B, C, D, and E, with the result that every Judge in the Province having been disqualified from holding the trial the four accused will go scot free. In the same way, if out of the five accused who are alleged to have committed an offence two are tried by the Sessions Judge and acquitted, but they are convicted by the High Court on appeal by the Crown, the trial of the remaining three by any Sessions Judge in the Province would not, in view of the findings recorded by 'the High Court, be without bias. And several cases have actually occurred where the Provincial Government filed an appeal against the acquittal of several accused persons, of whom only some were served and the appeal was heard in the absence of the others. If the High Court convicted, it was never contended that the judgment of conviction which recorded definite findings about the general character of the transaction or the special plea of the accused, had the effect of biasing the High Court or any Judge thereof in hearing the appeal against those respon dents who were served subsequently. Another feature of the judgment in Khairdi Khan's case which requires notice is that there is in that judgment a tacit recognition that a High Court can on facts order a retrial if the view of the evidence taken by the trial Court is manifestly wrong or perverse, or where the view taken by that Court is such as no reasonable judicial officer would take. If there fore the High Court, ' after considering the evidence, records the finding that the trial Court's view is manifestly wrong or perverse or such as no reasonable judicial officer would take, the order of retrial will, on that view of the law, not only be good but necessary in the interests of justices. Now if such orders are unexceptionable, will not the Judge who; in compliance with such order, holds the retrial be much more r biased than where the High Court after making some general observations about the evidence requires the Court which is to hold the retrial to re‑appraise the evidence or to hold further enquiry ? And will. not the doctrine of bias as enunciated in Khairdi Khan's case also affect the correctness of the view which has been held by some of the High Court's that a revisional Court can order further enquiry into the case of a discharged person if the order of discharge is, on the evidence, perverse, manifestly unreasonable, prima facie incorrect or foolish ? If the rule laid down in that case that where the High Court in revision disagrees with the reasons for the findings recorded by the lower Court , the reasons . given by the High Court create a bias in the mind of the Judge holding the retrial is correct, then if the High Court finds the view of the lower Court to be perverse or manifestly wrong or such as no judicial officer would take, it must a fortiori be held that an order of . retrial in such a case would be much more indefensible. Yet Khairdi Khan's case decides precisely. to the contrary, namely that. while an order of retrial in the case just mentioned is justified, that where it records its conclusions in milder words after reviewing the evidence is not. For these reasons, I am strongly of the view that the rule laid down in Khairdi Khan's case that bias itself vitiates all proceedings and orders made therein is not correct, and there can be doubt that this Court on whom rests the ultimate responsibility of interpreting the law of the land is entitled to change its opinion and to take a view different from the one it .has hitherto held. In Attorney‑General of Ontario and others v. Canada Temperance Federation and others A I R (33) 1946 P C 88 Viscount Simon pointed out that though the House of Lords is bound by its own. judgments, the Privy Council was not absolutely bound by previous decisions of the Board; and that on more than one occasion the Board had tendered advice contrary to that given in a previous case. In re Payment of Compensation to Civil Servants under Article 10 of Agreement for a Treaty between Great Britain and Ireland (1929) A C 242 the Marquees of Reading in rejecting the contention that the Privy Council could not change its view of law once taken said:- "At the outset of the hearing in this reference, Mr. Dickie, who attended their Lordships, on behalf of the Council of the Transferred Officers Protection Association, argued that the Board is bound in law, and without examination, to follow the decision in the appeal in Wigg's case (1927) A C 674 whether they considered it to be right or wrong. He maintained that if it was wrong; nothing short of an Act of Parliament could rectify it. Their Lordships are unable to hold that this proposition stated in such an extreme form is established. It may well be that the Board would hesitate long before disturbing a solemn decision by a previous Board, which raised an identical or even a similar issue for determination ; but for the proposition that the Board is, in all circumstances, bound to follow a previous decision, as it were, blindfold, they are unable to discover any adequate authority. In other words, no inflexible rule, which falls in all circumstances to be applied, has been laid down". 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 vitiates all . judgments and all orders made by a Judge are void is incorrect and should no A longer form part of the law of Pakistan. Lest there might be any misunderstanding I sum up below the conclusions I have arrived at :- (1) Every accused person has the right to a fair trial, namely, the right to be tried on the evidence by a judicially minded person. (2) If the Judge is functioning under an influence brought about by his own act or by the act of another person, which has the effect of paralysing his judicial faculties, there is no fair trial. (3) The fact that there was a paralysis of judicial faculties in a Judge cannot be proved by independent evidence but must appear from the manner in which he held the proceed ings or arrived at his conclusions. Unless, therefore, it be shown that the proceedings held were not fair or impartial or that his conclusions were wrong, an allegation of paralysis of judicial faculties would be as much out of place as the allegation that the Judge was deaf when it appears from the record that he heard the evidence. and prepared a true and faithful record of it. (4) Bias in a Judge is the paralysis, complete or partial, of judicial faculties and therefore the allegation of bias against e a Judge would be wholly unfounded unless it be shown that the proceedings held by him were irregular and one‑sided or the conclusions reached by him were wrong and reasons given in support thereof erroneous. In Khairdi Khan's case there being no finding that the judgment of Mr. Ahmad Khan who held the second trial was wrong, it could not be held that he was a biased Judge. This Court's judgment in that case was restricted to showing that Mr. Ahmad Khan's findings were in conformity with the observations of Mr. Justice Kayani in the order of retrial, and the judgments of the learned Chie Justice and of Shahabuddin and Cornelius, JJ., expressly proceeded on the assumption that Mr. Ahmad Khan was influenced in his decision by the order of retrial and not on the finding that his judgment was in fact wrong. The learned Judges did make some observations to the effect that the view of evidence taken by Mr. Inayatullah Khan was not unreason able but this cannot be said to amount to a finding that the judgment of Mr. Ahmad Khan which had been affirmed by a Division Bench of the High Court was wrong on the evidence adduced at the retrial. In the absence of any such findings no bias could have been attributed to Mr. Ahmad Khan. (5) Bias in judicial matters may be caused by the judgment, order or observations of a superior Court or may spring from personal, political, religious, communal; racial, commercial or economic considerations. But whatever may be the cause of it, ,it can never be held to be proved in the case of a judge whose judgment is right because the fact that his decision was correct is a complete refutation o the allegation that his judicial faculties were paralysed biased Judge producing a correct result is a contradiction in terms. (6) The conclusions stated above must be read subject to one important exception, and that is that there is a specie of bias which 'vitiates judicial proceedings irrespective of the correctness or otherwise of the result, but that is not because bias, whatever form it may assume, avoids the result o judicial proceedings, but because the Judge with that kind o bias is, on grounds of public policy, disqualified to be a Judge. 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 seen to be done, and how ever 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.) Instances of such bias are recognised in our law in section 556 of the Code of Criminal Procedure, and will also be found in Dimes v. The Grand Junction Canal (No. 1) and others (1852) 14 L C 759‑794 and Rex v. Sussex Justices (1924) 1 K B

256. I now come to the question whether the order of retrial should be interfered with. As. regards the High Court's power to order a retrial in revision. where the Provincial Government has not appealed from the order of acquittal there has never been nor there is any doubt. Under section 435, Cr. P. C., the Court of Revision sends for the record of an inferior Court to satisfy itself as to the correctness, legality or propriety of any finding, sentences or order or as to the regularity of any pro ceedings, and after examining the record the High Court can under section 439 of that Code pass any, order that a Court of appeal may pass including an order of retrial except that it cannot 'convert a finding of acquittal into one of conviction. The High Court is therefore perfectly within its powers to find in revision that a finding, lie it one of law or fact, or order of the inferior Court is not legal, correct or proper, and where the finding to be examined is one of fact, the High Court will of necessity have to review the evidence and give its reasons for holding that the finding, in the circumstances of the case, was incorrect. The only limitation imposed on the High Court's power is that while, interfering with an order of acquit tal it is not to convert a finding of acquittal into one of conviction. If, therefore, the High Court does not do anything of the kind, the order of retrial cannot be held to be illegal. Accordingly the discretion to make an order of retrial, provided it does not offend against subsection (4) .of section 439, is legally unlimited, though almost every High Court has imposed certain restrictions on the exercise of that power for its own guidance. It has never been doubted that where‑ the order of acquittal proceeds on a wrong view of the law the High Court can interfere with it. ‑ Thus, if the trial Court were to acquit a person on the ground that if the entire prosecution evidence be accepted the accused acted 'in exercise of the right of self defence and the High Court on being moved in revision by a private party is of the view that this finding of the trial Judge is based on a misapprehension of the law, there cannot be two 'opinions about the High Court's power to correct that error and to order a retrial. Such order will not amount to the con verting of a finding of acquittal into a finding of conviction because at the retrial the Court, though bound by the determi nation of the legal position, will still have to examine whether the prosecution evidence is reliable and, if believed, what offence it makes out. The present case is in one respect similar to the one just mentioned. Here Mr. Justice Kayani has held that the Sessions Judge was wrong in applying to the case on. the strength of the prosecution evidence those sections of the Penal Code which give to a person the right to kill in self‑defence. Now if a High Court can order a retrial because the acquitting Court has taken a wrong view of the law there can be no justification for laying down the broad rule that where the view of the trial Court on the facts is wrong, the High Court cannot order a retrial. In the case before ‑ the Supreme Court of India, Logendranath Jha and others v: Shri Polailal Biswas, a case which was followed in Khairdi Khan's case, it 'has been held that in .dealing with a revision peti tion by a private party against an order of . acquittal the High Court cannot in the absence of any error on a point of law re‑appraise the evidence ,and reverse the findings of fact on which the acquittal Nyas based. The Supreme Court appears to have looked at that case from the jurisdictional standpoint and seems to have held that the findings of facts recorded in that case by the trial Court were such that their reversal by contrary findings by the High Court amounted to converting a finding of acquittal into that of conviction. But if that case is taken to lay down the rule that the evidence on which the acquitting Court has based its findings of fact cannot as a matter of law be set aside in revision while ordering a retrial, I must respectfully express my dissent from that view because the mere vacating of certain findings of fact does not, unless clear findings of fact which may support . a conviction re recorded, amount to a conversion of finding of `not guilty' into a finding of `guilty'. , Technically, therefore, the power of the High Court to examine the evidence on which a finding of fact is based is unlimited, though in adopting that course it will naturally pay due regard to 'the opinion formed by the acquitting Judge about the witnesses who gave evidence be fore him and the corresponding disadvantages from which the High Court itself suffers in not having them before it. No artificial rules can, therefore, be laid down defining the classes of cases in which the High Court should or should not order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the, exercise of that discretion, apart from the legal restriction contained in sub section (4) of, section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and no arbitrary or fanciful. The trial Court's view of the evidence, the nature of the error committed, the magnitude of appre hended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances' of conviction, the expenses of a retrial are all relevant factors to be duly weighed. Cases which lay down that the discretion is not to be exercised unless the judgment of acquittal be perverse or based on a view of evidence which no reasonable man will take merely indicate the classes of cases in which an interfer ence is necessary and do not lay down that in no other case can the High Court interfere. It is a wise rule to follow that where the Legislature itself does not define the limits of or the grounds for the exercise of a discretion, the Courts should not too readily lay down rules to fetter that discretion, and it seems to me that the practice while interfering with order of acquittal of recording strong findings, as for instance, that the judgment of acquittal is perverse or manifestly wrong is to be deprecated, because if these be the only grounds on which an order of acquittal can be interfered with, revisional Courts will in every case be engaged in determining the preliminary issue whether the error committed is gross or palpable and the view taken perverse or foolish and not the real question whether the order of acquittal is wrong, and if allowed to stand, would occasion a failure of justice. In the present case, for instance, if we were to accept the view as laid down in Khairdi Khan's case that an order of acquittal can be interfered with only where it is manifestly wrong or perverse or is based on a view of the evidence which no judicial officer would take, in order to determine whether we should or should not inter fere we shall have to record a finding on the question whether the order of acquittal fell into the class of cases indicated. And this will mean that we would be judging the guilt or innocence 'of the accused before he is actually retried and clearly prejudicing him if eventually we came to the finding that the order of retrial was justified because the order of acquittal was perverse or manifestly wrong. This shows how dangerous it may sometimes be to a person asking for the interference of this Court with an order of retrial to attempt to obtain a finding that the order of acquittal was not perverse or manifestly wrong, because if any such ground be raised by the accused person, the prosecution would be entitled to show that the order of acquittal fell under that description and that therefore the order of retrial was good. What has to be realised in such cases is that the discretion of the High Court, subject to the statutory restriction mentioned above, is undefined, that the High Court though it exercises the powers of a Court of appeal is not itself a Court of appeal and that it is responsible, to itself alone for the exer cise of those powers. A retrial does not contravene the rule against double jeopardy because the order of acquittal is no final and is subject to the Provincial Government's right to appeal against it and of the High Court's power to quash it is revision. It is not‑ second trial for the same offence but continuation of the first trial the result .whereof has bee declared by the High Court to be invalid. The accused has alright to be heard before an order adverse to him is made in revision and cannot therefore complain that findings in his favour, whether they be of fact or law, have been vacated. Thus the order of retrial is an order in the same case and entirely outside the principle of double jeopardy. The order which is the subject‑matter of this appeal is a discretionary one, and unless we find that the discretion has been exercised contrary to some broad principle and is apt to lead to a miscarriage of justice, it is obvious that we should not interfere with it. To justify our interference, we shall have, to find that the order is wrong on the facts, and this would mean not only a re‑examination of the evidence by us but also a comparison of the views of the evidence taken by the trial Court and by the learned Judge in the High Court and any such comparison is pregnant with the possibility of a finding being given by us that the learned Judge of the High Court was right and the Judge of the trial Court wrong. This would create an .extremely embarrassing position for the appel lant, because we shall have judged the evidence, and thus if we allowed the order of retrial to stand, gravely prejudiced the appellant in the new trial. Our attention has not been drawn to a single case where the Privy Council interfered with an order of retrial. In the case of D, Stephens v. Nosibolla 1951 S C R 284 the Privy Council granted leave to appeal from an order of retrial but that was a peculiar. case in which the Chief Presi dency Magistrate had twice acquitted the accused of charges under sections 25 and 26 of the Merchant Shipping Act, and the High Court had ordered a third trial on evidence which, if accepted, did not make out a case of the breach of , either of these sections. On Privy Council's jurisdiction having been abolished, the case was transferred to the Supreme Court of India, and the learned Judges set aside the order of retrial on the ground that on the facts, admitted or proved in the evi dence the appellant could not be held to have committed any offence under section 25 or section 26 of the Merchant Ship ping Act, because the evidence showed that the accused neither engaged or supplied any seaman, nor demanded or received any remuneration for providing any person with employment as a seaman. On these findings, which were based on evidence, the truth of which was not disputed the legal position was clear that neither an offence under section 25 nor one under section 26 of the Merchant Shipping Act had been committed. The order of retrial thus constituted an infringement of the essential principles of justice. The case did not at all raise issues of fact on which the acquitting Judge had taken one view and the High Court another. For these reasons, I take the view that the order under appeal in this case is not a fit one for interference by this Court. The order of retrial does not at all direct the Judge holding the retrial to come to a certain conclusion, nor does it require him to take any particular view of the evidence, though some of the expressions used in the order of retrial undoubtedly convey the learned Judge's own view of the evidence. The Judge who is called upon to hold the retrial is presumed to know that these expressions are not binding on him, . that his judicial discretion in the matter remains unfettered, that he is perfectly free to come to any finding which the evidence before him may lead to, including the finding that though some of the possible hypotheses have not been proved, the prosecution evidence is so unreliabe that he cannot act on it, and that the responsibility for a wrong decision still remains his. If the retrial ends in a conviction, the appellant has a right of appeal where, I have no doubt, the learned Chief Justice in accordance with the practice of his Court will order the appeal to be placed before a Judge or Judges who will bring a fresh mind to bear on the evidence. Y would, therefore, dismiss this appeal. A. S. M. AKRAM, J.‑I agree. MUHAMMAD SHARIF, J.‑‑I agree. CORNELIUS, J.‑The order which is called in question in this appeal is an order by a single Judge of the Lahore High Court, directing re‑trial of the petitioners Anwar and Nawaz who were two out of four persons who had been acquitted at a trial held by Ch. Fail‑i‑Haq, Sessions Judge, Attock, on a charge. under section 302/34, P. P. C. for the murder of one Faruq. It is axiomatic that this Court will not interfere with the course of a pending judicial proceeding except on the most cogent grounds. The' case against Anwar and Nawaz has yet to be recommenced. Their . acquittal at the first trial having been set aside, their guilt or innocence in respect of the facts alleged has been placed sub Judice by the same order. The assumption must be that the re‑trial will be conducted in a fair and impartial manner, as required by law. The argument has however been raised that the order passed by the learned Judge contains an expression of opinion regarding issues of fact which are yet to be decided at the re‑trial, and having regard to the disparity of position between him and the Sessions Judge, who functions as a subordinate of the High Court, it is not to be expected that the. trial Judge will be able to reach his conclusions on those issues with a fresh and open mind. In other words, it is suggested that the clear "findings" by the High Court on the principal questions of fact arising in the case must necessarily produce a bias in the mind of the trial Judge such as is calculated to influence the course of his decision. This argument is founded on an observation in the order under appeal to the effect that in either of two views, which the learned Judge thought were the only possible views which could be taken in the case, of which the facts were before him on the records of. the first trial, "at least two of the accused, Anwar and Nawaz, would have been found guilty of some offence:" It was contended, that in the face of this observation; the trial could only proceed on .the basis that Anwar and Nawaz had no chance whatsoever of complete acquittal, and in those circumstances, the trial would not be a fair trial at which the accused would be pro vided with his natural right to establish his freedom from criminal obligation of any kind. To emphasise the gravity of the situation which has been created by the order of the learned Judge, it was pointed out that Ch. Fazl‑i‑Haq at the first trial had come to the clear conclusion that‑ "it was not unreasonable for the accused to apprehend that Faruq will cause death or grievous hurt with his chhuri to them if he was not injured and the case 9f the accused will fall under sections 96 and 100, P. P. C., and they cannot be considered to have exceeded the right of private defence in giving two blows with chhuras to Faruq as alleged by the prosecution witnesses." As an instance of proved bias resulting in a previous case from an order of re‑trial which exhibited similar features, reference was made to the case of Khairdi Khan P L D 1953 F C 223 which was decided by this Court on the 10th April, 1953. The principal argument in reply was the natural one. that the Judge who conducts the re‑trial will be aware that it is his duty td conduct the trial fairly and impartially and to give the accused persons the benefit of everything appearing in their favour, even in the shape of a doubt. It was asserted that Sessions Judges do not exhibit, in general, such a servility of character and opinion as is assumed in the argument for the appellants, and provides the basis for their apprehensions. The order of retrial had been made under section 439, Cr. P. C., in the exercise of power conferred on the High Court in unfettered terms. Its validity could not be questioned in relation to the terms in which the order was made. It was for the Judge in the High Court to determine these terms, and if he chose to base his final order on considerations arising out of the evidence and circumstances appearing in the case; he was at perfect liberty to do so. Being a valid order made under legal powers, it was proper that it should be allowed to take effect, and the Federal Court would not be acting within the limits of the special jurisdiction. which it has been exercising in criminal matters,‑ in interfering with it. This was the view pressed by the Advocate‑General for the Punjab Province, but the Advocate‑General of Pakistan, appearing under the directions of the Court, took up an appreciably different position. He was inclined to think that an order of re‑trial, if made by ,a High Court, could not in all circumstances be regarded as a mere interlocutory order made in the furtherance of justice. It was possible, in the submission of the Advocate‑General of Pakistan, that a High Court may make an order for re‑trial on grounds which are plainly perverse and unjust. In these circumstances, the Federal Court would, in his submission; be under a duty to act for the prevention of injustice. The learned Advocate General of Pakistan was also of the opinion that the power of the High Court to order re‑trial had been limited by virtue of certain judicial decisions, among which he placed parti cular reliance upon the views. expressed by a Full Bench of the Lahore High Court in the case Partap Singh v. Harnam Singh I L R 1942 Lah.

125. He supported the view that an order for re‑trial of a person whose case has already been fully tried arid has resulted in acquittal should only be made where the judgment is vitiated by perversity or by such violation of important legal principles as constitutes gross illegality. Having' been a member of the Court which heard arid decided' the case of Khairdi Khan (cited above). I am not impressed ' by the assurance that the Judge, who re‑tries the' case will remain unaffected, through ample strength of chalrac ter and independence of opinion, by the ' clear and‑ unambi guous conclusion expressed by. the learned, Judge in the High Court regarding the facts of the case. It has no more substance than a pious hope., To the accused persons, such an ,assertion may seem devoid of content. The aspect of the matter which I consider to be most correct has been expressed with force and clarity. in the United‑ States Supreme Court by Chief Justice Taft, in the case of Tumey v, State of Ohio U. S. S. C. R. Lawyers Edition Vol.. 71 p. 150 in the following words ;‑‑ "The requirement of the process of law in judicial procedure is not satisfied by the argument that men of the highest honour and the greatest self‑sacrifice could carry it on without danger of injustice., Every procedure which will offer a possible temptation to the average man as a Judge to forget the burden of proof required to convict the defendant or which might lead‑ him not to hold the balance ice, clear and true between the State and the accused denies the latter due process, of law:" Important and even essential though the possession of the relevant moral qualities is for a Judge in the due administration of justice, the standard displayed by individual Judge is subject to variation, and this is so even 'where the Judge is completely free from outside influences or pressures. The situation deterio rates where anything in the, nature of a strong influence has become apparent. The argument that in the face of an order of a superior Court declaring that a man is guilty of some ‑offence or other, and at the same time directing that he be re‑tried, there is in the words of Chief Justice Taft "a possible temptation to the average' man as a Judge to 'forget the burden of proof required to convict the defendant or which might lead him not to hold the balance nice, clear and true between the State and the accused," is, in my opinion, unanswerable. It. is within the meaning of these words that I understand the observations of Sir Abdul Rashid, C. J. on this point, contained in his separate judgment in the case of Khairdi Khan. The late Chief Justice, after setting out the precise findings given in the order of re‑trial which came under examination in the case, made the observation quoted below:‑ "In my opinion, the findings given by the learned judge amounted to a direction to convict, and no Sessions Judge subordinate to the Lahore High Court could remain unbiased after reading the findings given by the Lahore High Court." Earlier, the learned Chief Justice had stated the approval of the observations made by the Supreme Court of India in two cases from which extracts were cited. The conditions obtaining in the relevant respect in India compare very nearly with those found in Pakistan, owing to the common history of development of the judicial system in the two countries. In Logendranath Jha v. Shri Polailal Biswas (1951SCR676), the Supreme Court of India observed as follows:‑ "No doubt, the learned judge formally complied with subsection (4) by directing only a re‑trial of the appellants without convicting them, and warned that the Court retrying the case should not be influenced by any expression of opinion contained in his judgment. But there can be little doubt that he loaded the dice against the appellants, and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general." That was said in an order whereby the High court order for re‑trial was set aside and the acquittal by a Sessions judge was restored. Speaking with great respect, I am unable to agree that the defect could not be remedied otherwise than by evidence of the High Court order. My opinion on the point appears with sufficient clearness from the judgment of my brother Shahabuddin and myself in the case of Khairdi Khan. My reason for reproducing the above quotation is to seek support from the unambiguous expression of views by very learned and experienced judges, who have been familiar with the prevalent conditions, regarding the probable effect upon the mind of a judge in a station subordinate to the High Court, of observations regarding the facts contained iii the judgment of the High Court. I should like to note in this place, with a measure of satisfaction, that the making of orders of the kind here in question is by no means a usual feature in the Lahore High Court. Quite recently, this Court has had before it a decision of that High Court in the case of Mirza Khan ((F C) Cr. App. No. 60 of 1954 (Not approved for Reporting)). There, a Division Bench of the Lahore High Court was dealing with an appeal filed by the Crown under section 417 Cr. P. C. against the acquittal of one Mirza Khan in a case of murder and an attempt to murder. Along with the appeal, the High Court was seized also of a revision petition filed on behalf of the complainants, for an order of re‑trial against four other persons who had been acquitted in the same case. The learned Judges of the High Court dealt with the evidence against Mirza Khan and having come to the conclusion that it was sufficient to sustain his conviction for murder, they set aside the acquittal, and convicted and sentenced Mirza Khan. But they dismissed the revision petition on the ground that for them to direct re‑trial of these persons, after having themselves expressed their views definitively concerning the credibility of the witnesses and offence established by the evidence, would merely amount to a direction to the trial Court to convict. This they were not prepared to do. As for the present case, although the order of re‑trial contains specific views regarding the criminal liability of the accused persons, I would allow the' case to proceed but would issue at the same time. a direction to the Judge who takes up the re‑trial that he is not to consider anything said by the learned Judge of the High Court in the order of re‑trial as being in the slightest degree of binding effect in relation to the conclusions which he himself reaches on the facts established before him by the evidence. It is, in my opinion, to be regret ted that the order under appeal does not itself contain such a caution. Its absence serves to create an unfortunate impres sion. Such a warning is very frequently found in orders of this kind, which proceed upon opinions formed concerning matters of fact arising out of the case. In certain cases, Superior Courts have refrained from expressing any such opinion. An instance of such an order for re‑trial is that made by the Privy Council in a very early case reported as Seal v. O'Dowda, 4 M I A 382 which was as follows :‑ "Their Lordships are unanimously of opinion that the appellant is entitled to a new trial, as they consider that the Court below has not weighed all the circumstances in evi dence, with sufficient accuracy to justify the verdict which it has given. Their Lordships do not think it right, or fit, to enter into the particular reasons the learned Judges below have given, but consider that there should be a new trial. The opinion of their Lordships is therefore that the judgment of the Court below be reversed and that the rule for a new trial be made absolute." As regards the point taken by the learned Advocate‑Gene ral of Pakistan, that limits may be imposed upon the jurisdic tion conferred upon the High Court by section 439, Cr. P. C. to order a re‑trial, it will be useful to start the discussion by reproducing the following short extract from the judgment in the case of Par tap Singh v. Harman Singh (cited above) :- "Under clause (4) of (section 439 the High Court cannot convert a finding of acquittal into one of conviction, but it can under the powers conferred under section 473 order the accused to be retried by a Court of competent jurisdiction subordinate to such appellate Court. In considering the ques tion whether quack a retrial should or should not be ordered the discretion of the Court is legally unlimited. In' actual fact, however, the Court seldom exercises this discretion except as laid down in a number of rulings, namely, that an order of acquittal will not as a rule be interfered with merely because the High Court, disagrees with the finding of the Magistrate. It is only when the record is incomplete or there is a flaw in jurisdiction or where the finding is mani festly wrong or perverse that the High Court will interfere in such cases." Laying emphasis particularly on the declaration that "the dis cretion of the Court is legally unlimited," this statement appears to me, and I say so with great respect, to be in its terms unexceptionable. The words do not, in my opinion, convey an exclusive or exhaustive effect. If they did, the result would be to put an end to the unfettered discretion conferred by the Legislature upon the Court. There can be no objection to the laying down of general indications to help the Courts in exercising a discretion which is conferred by statute in the widest terms. This would lead to convenience in practice. But it is of the highest importance to avoid laying down any thing in the nature of a rule governing the exercise of the discretion, for that would be to legislate, and to do so in a sense contrary to the intention of the Legislature. In every case of the relevant kind, .a number of considerations are present to the mind of the Court which is called upon to exercise the discretion, and these must necessarily vary from case to case but where an order for a re‑trial is based on appraisement of evidence, one consideration, to which the highest value ‑ must necessarily attach, is that while preserving its own jurisdiction to the fullest extent, the Court ordering the re‑trial should refrain from interfering with the jurisdiction of the Court to which, by its own. order, it is committing the case for trial. In no respect can the interference be more dangerous to the dispensation of justice in the particular case, and even generally, than in relation to the fundamental right of the accused person to have a fair and impartial trial at the hands of a Judge who is himself personally indifferent to the result and is under no influence or pressure of any kind to reach a conclusion adverse to either party. Where the direction for re‑trial is couched. in terms. which incline to produce a particu lar result in the case, e. g., it contains findings of fact on the evidence, this right is clearly impaired, and the ‑freedom of the Court conducting the trial is interfered with, to the detriment of justice. The requirement of such restraint must be regarded as intrinsic in the character of the administration of justice. It is not of external imposition. It arises out ‑of the duty to prevent abuse of the processes of justice, which attaches to ‑ every Court, and in particular, the High Courts (vide 'section 561‑A, Cr. P. C.) As regards the jurisdiction of the Court to deal with orders of re‑trial, I am in entire agreement with the learned Advocate‑General of Pakistan that a case of "grave and substantial injustice" inviting interference by this Court, is conceivable as the result of allowing an order of re‑trial to take effect. I am not prepared to exclude the possibility of such a case arising for the exercise of the sovereign s authority to act for the prevention of injustice by a Court in its criminal jurisdiction.. The foregoing ,conclusions are, in my opinion, sufficient for disposal of every point. arising properly in this appeal. It still remains, however, to state and to discuss a peculiarly difficult question which was raised during the hearing. This question relates to certain observations contained in the judgments delivered in .the case of Khairdi Khan (cited above), and the discussion may suitably commence with citation of the relevant passages.

1. From the judgment of Sir Abdul Rashid, C. J. "The learned Advocate‑General contended that even if we hold that the order for re‑trial made by Mr. Justice Kayani on the 2nd February, 1950, amounted to a direction to the Sessions Judge to. convict, it is only the Sessions Court that can be said to have approached the case with a biased mind; and that the same cannot be said in respect of the judgment of ,the learned Judges of the High Court who heard‑the appeal against the order of conviction passed by Mr. Ahmad Khan at the second trial. It was urged, therefore, that the order of the Division Bench should not be upset. In my opinion, this contention is based on a misapprehension. If Mr. Ahmad Khan was not an unbiased Judge the trial in his Court was, completely vitiated. The trial is the foundation of the case, and if the trial has been vitiated, the judgment in appeal which is the superstructure built on the foundation, cannot stand." In support .of this statement of ‑law, His Lordship cited a judgment of the Privy Council in the case of Adan Haji Jama 1948 A C 225.

2. From the judgment of Shahabuddin and Cornelius, JJ. "On this view, the appeal would appear to be concluded in favour of the appellants, but it has been represented before us that the flaw should be deemed to have been corrected and compensated for by the re‑examination of the evidence which took place‑ at the hearing of the appeal in the High Court. The contention assumes that a flaw of this nature is curable in appeal, and as to that there can be no two opinions that anything in the nature of a serious defect in the instrument of justice, as operating in a Court of first instance, vitiates all subsequent proceedings. Thus if it be shown that the Judge was interested in one of the parties to the case before him, or that he had received gratification for the purpose of deciding the case in a particular way, or that he was under some strong influence guiding his decision in a particular direction, the whole trial would thereby be rendered a nullity, not so much by reason of the danger of his utilising fallacious arguments to reach a particular end, but because of the impossibility of believing that, in the circumstances, there was a fair trial of the cause. There are reported gases of trials being held to be void because of an assessor, whose opinion Was not binding on the Judge, having derived information of the case from extra‑curial sources. Tumahole Bereng and others v. The King AIR1949PC

172. The right of the parties seeking justice and in particular of an accused person in a criminal trial is a right to a fair trial. It has often been said that it is not sufficient that justice should be done, but it should also be seen to be done. In the present case, where it is plain that the Judge at the trial felt himself debarred from investigating or considering certain very plain and cogent arguments appearing in favour of the defence, which had been set out lucidly in the judgment recorded at the first trial, it is clear that he did not approach that case with an` open mind, and in those circumstances it is idle to scrutinize the arguments set out by him for validity in logic. On the same reasoning, there is no profit to be . derived for the interests of justice in considering whether all or any fallacies appearing in his judgment have been considered or compensated for in the .judgment of the appellate Court. The trial was one‑sided and so was the judgment delivered in the trial Court. Such a defect cannot be cured by a rehearing of the case in appeal, where the appellant was limited to showing that the grounds of conviction were bad in themselves,. or in relation to the record of evidence." The learned counsel on the two sides were called upon to say whether they considered that the law ‑had been correctly stated in the above passages. Mr. Fazal Din appearing for the petitioners categorically declared that the view taken by the Federal Court was wrong. Mr. Fayyaz Ali, Advocate‑. General of Pakistan thought that the view of .the Federal Court could only be accepted as correct in so far as it is in accordance with section 556, Cr. P. C: which is in the following terms :‑ "556.‑No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself. Explanation.‑A Judge or Magistrate shall : not be deemed a party, or personally interested, within the meaning of this section, to or in any case by reason only that he is a Municipal Commissioner or .‑otherwise concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case." He contended that the three Judges, of the Federal Court had misdirected themselves in seeking guidance from the Privy Council cases of Adan Haji Jama and Tumahole Bereng. With respect to the first case, he argued that the Privy Council set aside the 'conviction mainly because, there had been violation of the relevant law by failure to 'appoint a public prosecutor to conduct the prosecution, and that the further observations of the Privy Council regarding the effect upon the proceeding of the judge having performed the functions of a public prosecutor were of merely collateral effect. As regards the case of Tumahole Bereng, the learned Advocate‑General of Pakistan declared that the case had gone rather on the merits than upon the circumstance that one of the assessors had informed himself regarding the facts outside the Court. Declaring that he himself had never found a single case in Which bias in the Judge had been held to avoid all the proceedings before him the Advocate‑General of Pakistan 4eferred to section 526 Cr. P. C. which makes provision for transfer of cases as providing the only remedy in cases of 'bias. His final conclusion was that in order that bias should be held sufficient to avoid a judgment, there must be either an express provision of law to that effect, or an authority of the Privy Council, which he had not been able to discover. 5Mr. A. R. Changes, Advocate‑General for the Punjab thought 'the Federal Court judgment did not state the law correctly, 4hd contended that no bias can be presumed to flow from a High Court judgment. The present matter came to this Court at a stage prior to the commencement of proceedings in the re‑trial. I have stated my view, earlier in this judgment, that such effect as the appellant complains of may be avoided by adding a caution to the trial judge in certain terms which I have proposed. That is in order to avoid the bias likely to be created other wise, and it would seem premature to consider the effect of bias, if created, on the proceedings yet to be held. I should very much have preferred that re‑consideration of the views of three judges of this Court, expressed in Khairdi Khan's case, should have been reserved for an occasion when the point arose squarely for decision. . It is therefore with a measure of reluctance that I enter upon the task which is not a duty in relation to the disposal of this appeal. The duty, if any, is that of explaining, and where necessary, supporting a considered decision of this Court in an important case, to which decision I was a party. I proceed first to consider whether it is open to the Federal Court to over‑rule a previous decision by itself. Counsel on the two sides have apparently been under the impression that, in order to establish this, it is sufficient for them to cite the well established proposition that the Privy Council was not bound by its own decisions. But, it seems to me that the position as regards the Federal Court is by no means so simple. It is true that as from the 1st of May 1950, the Federal Court has been invested with "`the same juris diction to entertain and dispose of Pakistan appeals and petitions as His Majesty‑in‑Council has, whether by virtue of His Majesty's prerogative or otherwise, immediately before the appointed day." With effect from that day, namely the 1st of May 1950, the jurisdiction exercisable by virtue of His Majesty's prerogative came to an end. These effects follow from an Act of the Constituent Assembly of Pakistan entitled the Privy Council (Abolition of Jurisdiction) Act, 195:

1. The legal effect and validity of decisions given by they Federal Court and the Privy Council within the territorial limits of Pakistan is not, however, a matter of common law, ‑ or one to be settled by. reference to practice or general principles. There is a precise provision in the Constituent Act, namely section 212, Government of India Act, 1935, dealing with this matter, which reads as follows :‑ "212.‑The law declared by the ‑ Federal Court and by any judgment of the Privy Council shall, .so far as applicable, be recognised as binding on, and shall be followed. by, all Courts in any Governor's Province or Chief Commissioner's Province or in the Capital of the Federation, and, so far as respects the application and interpretation of this Act or any Order in Council or order thereunder or of the Indian Independence Act, 1947, or of any order thereunder or any matter with respect to which the Federal Legislature has power to make laws in relation to the State, in any Federated State." Reference to the Privy Council (Abolition of Jurisdiction) Act, 1950, will show that at the same time as the jurisdiction in the prerogative was transferred from the Privy Council to the Federal Court, a number of consequential amendments were made in the Constitution Act, to give effect to the change. No change was however made in section 212 which has been reproduced above. Accordingly, to give effect to section 212, after the passing of the Act of 1950, it will be necessary to regard the Federal Court as having been invested with the jurisdiction of the Privy Council from the date in question, so that the expression "law declared by the Federal Court" would mean the law declared by that Court exercising in addition to its functions prior to the 1 st, May 1950, the functions of the Privy Council also with effect from that date. This addition to the jurisdiction did net change the character of the Court ; it still remained the Federal Court and section 212 must be taken to refer to the law declared by the Federal Court in any one of the functions or jurisdictions appertaining Jo it for the time being: The expression "any judgment of the Privy Council" must be presumed to have reference only to judgments pronounced by the Privy Council, before the loss of the jurisdiction in question. In other words, section 212 'gives binding effect to the case law derived from the judgments of the Privy Council; which may now be described as a "closed book", not subject to variation by any Court in "any Governor's Province or Chief Commissioner's Province or in the Capital of the Federation" by which is meant no more and no less than was meant by the expression "British India" as used in the Constitution Act prior to the Partition, viz., that part of Pakistan which is under the direct administrative control of the Central or any Provincial Government. The Privy Council, having lost jurisdiction in Pakistan, is no longer competent to vary these judgments in then' application to Pakistan. On the other hand, it can hardly be doubted that the Federal Court is a Court established in Pakistan. In an earlier case in this Court, Ali v. The Crown PLD 1952FC71, I expressed the same opinion, with reference to the word "Court" as used in section 167, Evidence Act, 1872, in the following words :‑ "It is of course; clear that the provisions of the Indian Law, of Evidence were not binding on the Judicial Com mittee. The question whether the provisions of the' Evidence Act of. Pakistan are applicable to this Court has not been argued before us, and I am not aware of any decision‑ of this. Court on the point. Prima facie, since the Federal Court is constituted by proper authority in Pakistan, it is within the meaning of the expression `Court' ,as used in section 167 of the Evidence Act." Giving the words of section 212 their full force, I see no escape from the conclusion that the Federal Court, being a Court established in Pakistan, must be regarded as bound by its own decisions, in so far as they declare the law. This conclusion may also be reached on another consideration namely that prior to the Partition, by virtue of the Govern ment of India Act, 1935, an appeal lay to the Privy Council, from decisions . of the Federal Court. Where the law had been declared by the Federal Court; it was right and proper that it should be considered to bind all the Courts in British India, including the Federal Court, until the Privy Council held otherwise, in which case, the judgment of the Privy Council would prevail. Where the Privy Council itself was not bound by its own decisions (even though it might vary them only on the most cogent grounds, and with great reluctance) it would obviously have been productive of something resembling judicial chaos if the Federal Court too were not bound by its own decisions. It is therefore reason able to give the words of the original section their full weight, and interpret section 212 as providing that as a Court in British India, the Federal Court was intended by Parliament, to be bound by the law declared by itself, until the Privy Council should pronounce to the contrary. If that be the true interpretation, then I feel no hesitation in thinking that, if in 1950, the Constituent Assembly had desired to create a condition in ‑ which the Federal Court could freely depart from its own declarations of law previously 'made, it would have done so by means of express words. As the section reads today, and bearing in mind its original wording, and the conditions, which obtained for some twelve years before the Partition, and for some fifteen years before the jurisdiction of the Privy Council was finally abolished, I am clearly and strongly of the view that the Federal Court, as a Court in Pakistan, is bound to recognise the law declared by itself as binding upon itself in future cases. That' does not mean; of course, that it is debarred from clearing up points of obscurity, or from explaining matters which either have been left in doubt, or may have given rise to doubt. The necessity of certainty to the law is of the utmost importance for the due administration of justice, as a principal agency in the main tenance of public order. That appears to me to be assured by the application of the conclusions reached above. On the other hand, the principle is placed in jeopardy by anything which would tend to facilitate complete reversal of the views expressed in this Court from time to time on important questions of law. It is from this point of view that I now proceed to examine the passage from the judgments in Khairdi Khan' case to which exception has been taken. It would seem derogatory of his position for a Judge in this Court to attempt a justification of what he has said in a previous judgment in the presence of' the protection provided by section 21 of the Constitution Act. If anything affecting the right of a litigant in the instant case turned upon the correctness or otherwise of his previous opinion, such a Judge might even be thought to be disqualified from dealing with the case. In this case, it is fortunate that the point is not one which arises for decision, so as to affect any right of either party. If what I am about to say reads like a justification of what was said before, I can only plead the compulsion of circumstances. I take up first the question of the meaning to be attached to the word "bias". In the simplest sense, it means obliquity, or inclination away from the straight and the true. In the game of bowls, where the term "bias" is used in a specific sense, a ball which is not of uniform density throughout, is thrown along a straight line, and ' is found eventually to depart from that line on account of the unbalance or "bias" within it. A balance which is heavier in one pan than the other has an inclination which will prevent it from showing a true weight. A Judge conducting a trial, should be guided by a single purpose, namely, to ascertain the true facts from the evidence and circumstances presented before him, so far as may be possible, and to assess the liabilities, in the eye of law, as between the parties, on the basis of the facts so ascertained. His powers of control over the conduct of the proceedings are very large, so large indeed that if the Legislature, or before Legislatures, the common law, had contemplated the possibility of unjust or biased Judges being entrusted with the task; there is no doubt that those powers would have been very greatly restricted. He may put questions to witnesses, at any stage ; he may allow or disallow questions ; he may interrupt the proceedings and has full power over adjournments ; he may recall witnesses and question them on points regarding which they have already testified he may summon any person whom he thinks likely to be able to give evidence regarding the matter before him ; he exercises control over the conduct of lawyers appearing in the ,case. These are but a few of the powers which he possesses, and it is unnecessary to emphasise the possibility of one or more of these powers being exercised so as to influence the course of the proceeding, the state of the record, and eventually the decision in a particular direction. The Judge may, if he be so minded, prevent any indication of his bias from appearing on paper, and it would be natural to him, bearing in mind the possibility of appeal, to take precautions of this kind. It seems to me that the argument, that an appellate Court can always do justice on the basis of the record of the proceedings conducted by a biased Judge, can only be . put forward if all the considerations enumerated above, and many others of a like nature, were to be ignored. I shall return to this subject later, and refer to the views expressed by other superior Courts to show that mine is not a singular or original opinion. Act this point however it will be convenient to continue discussion of the conception of bias, as affecting . the discharge of the judicial function. The various forms of bias and the variety of circumstances which may produce bias are so numerous that a comprehensive definition can only be phrased in terms of the defect, in the eye of justice, which bias produces. In the case of Franklin v. Minister of Town and Country Planning L R 1948 A C

87. Lord Thankerton in the House of Lords expressed himself' s follows regarding the meaning of the word "bias" :‑ "Its proper significance, in my opinion, is to denote a departure from the standard of even handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi judicial office, such as an arbitrator. The reason ,for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or the other in the dispute." Anything producing such an inclination or bias in a person entrusted with the adjudication, affects the indepen dence of his mind which is a sine qua non for the discharge of the `judicial function. The quality of a Judge, as a person, becomes tainted with interest, when he becomes inclined either for reasons within himself or for reasons external to himself, to look at the matter before him with an inclination or bias towards one side. The matter gains point if it is shown that the inclination was fn favour of producing a particular result in the case, e.g., at a re‑trial in favour of a finding of guilty on a charge, when complete evidence has already been led on such charge. at the first trial: In such a case‑which is essential respects, was Khairdi Khan's case‑it must be clear that the Judge is, throughout the proceedings, touched with partiality; he has violated the judicial duty of indifference. As was said by Lord Chancellor Granworth in Ranger v. Great Western Railway Co. 101 R R 46. "a Judge ought to be, and is supposed to be indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to one side rather than to the other. In ordinary cases, it is a just ground of exception to a Judge that he is not indifferent . . . . ." A more general definition of bias, couched in language of commendable clarity, is found in a case from the United States Supreme Court, viz., Berger v. U. S. A. U S S C R 65, Lawyers' Ed. p.

481. The judgment of the majority of the Court at page 485 states that to impute bias is "to make a charge of a bent of mind that may prevent or impede impartiality of judgment." Where an influence is shown to have worked on the mind of the Judge, conducive to the procuring of one particular result in reference to all other possible results in the proceedings, the clearest possible case of impartiality of judgment being prevented or impeded would be provided. That was precisely what was found all the three Judges to be the vice in the case of Khairdi Khan. The necessity of judicial independence of mind, of judicial indifference, and of judicial impartiality,, for the due administration, of justice is so universally accept ed that it would be strange indeed if no provision whatsoever were made for it in so comprehensive an enactment as the Cr. P. C. In fact, there is such provision, although limited in scope, in section 556, which has already been reproduced above. ' It is extremely doubtful if, at the present time, any judicial officer can be found who would apply for permission to try a case "to or in which he is a party", and it is very difficult to conceive of circumstances in which such permission could appropriately be given. The principle on which the Legislature regarded permission by a superior Court as a sufficient safeguard against the pernicious effect in relation to ‑the particular case, as well as to the interests of justice in general, of a Judge trying or hearing a case " to or in which he is a party or personally interested", seems to me almost, impossible to ascertain. If the quoted words be construed in their narrowest sense, they cannot be understood. otherwise than as importing a disqualification which no act of a judicial authority, how highsoever, can be thought to repair effec tively. It is possible that the reason was the paucity of Magis trates and Judges in the early days of British administration. A particularly bad instance of a British District Magistrate who had taken an active and direct .interest in investigating a case against an Indian jailor, sitting on the trying Bench along with the British Superintendent of the Jail upon whom the accused was alleged to have practised fraud thereby causing loss of money to the' Government, is that of Bholanath Sen (1876) 2 Cal.

23. The Judges of the ,Calcutta High Court treated them both as disqualified, and observed. "It is one of the oldest and plainest rules of justice and of common sense that no man shall sit as Judge in a case in which he has a substantial interest. That is the law, of this country as much as it is the law of England." Kharak Chand Pal v. Torack Chunder Gupta (1884) 10 Cal. 1030 is another case of a District Magistrate presiding over a meeting of a Municipal Committee ‑ where a particular order was issued, and later trying a person for contravention of the order. There had been no application to the appellate Court for permission. The High Court held the trial to be illegal and set it aside, on the ground that the Judge was himself the prosecutor, and supported their order by reference to the English case of Serjeant v. Dale, LR2QBD558 a decision which declares that " by the common law, a Judge who has an interest in the result of the suit is disqualified from acting except in cases of necessity, where no other Judge has jurisdiction". The English common law was again applied by the same Court in a. civil case in the same year, viz., Loburi Domini v. Assam Railway Trading Co. (1884) 10 Cal. 815 where the Judge had previously, in, an executive capacity, taken an active part in preparing the case for one party and had expressed opinions. on the merits of the case. Several English authorities, including the important cases of Dimes v. Grand Junction Canal 3 H L R 759, a case of pecuniary interest which will be considered pre sently, and R. v. Rand L R 1 Q B. 230, where it was held that a real likelihood of bias in the judge disqualifies, were relied upon. In Bombay case, In re. P. A. Rodrigues (1895) 20 Bom. 502, a Magistrate was held disqualified by pecuniary interest through being a share holder in the Company which the accused was alleged to have defrauded. In citing section 555 of the Cr. P. C. then in force, the High Court observed:‑ "This is simply an enactment of the rule of common law, that no one can be a Judge in a case in which he has a pecuniary or personal interest." In each of the criminal cases cited above from the Indian High Courts, a conviction was quashed on the ground of disqualification. (In the civil case from Calcutta, the order of transfer which was sought, was eventually found to be unnecessary, as in the meantime, the of ending Judge had been transferred). Many other cases can be cited to show that the rule of English law has, in this respect, been followed generally in the Courts of the sub‑continent of India. These Courts acting in appeal or revision have not hesitated to annul : pro ceedings where the tribunal of first instance has been found to be effected by pecuniary or personal interest in .the result of the case. In terms, section 556, Cr. P. C., prevents a Judge or Magistrate, who is a party to or is personally interested in a case, from trying it, without the permission of a superior appellate Court. Now; the commonest circumstances which operate to produce such a condition are matters which can never be disclosed for the purpose of seeking permission, without incriminating the person seeking it. In a case where a Judge has received a bribe, or a promise of advancement from a powerful person interested in the result of the case, or has even received a "recommendation" or "request" connected with such result from persons whom he regards with respect such circumstances can never be expected to be‑ revealed to a superior appellate authority, yet these are far more cogent disqualifications than any which can arise from, say, a prior connection with the matter in a different capacity, such as that of . a Municipal Commissioner or from having inspected a "spot". Can it be then that the intention of the Code was that there should be no disqualification except on grounds which can readily be disclosed, and submitted for consideration by a superior appellate authority ? The question is relevant only to meet the argument that proceedings in a criminal matter can never be avoided on the ground of interest in the tribunal, unless there be also default in obtaining permission from the superior appellate authority. The largest number of cases have come before the Courts, after completion of proceedings and proof of disqualification has been led aliunde, by affidavit or otherwise. It seems to me to be abundantly clear that avoidance of proceedings ex post facto on the ground of dis qualification is on a much wider basis than that appearing from the negative terms of section 556, Cr. P. C. which can be interpreted as applying only to disclosable matters and to a stage preceding the commencement of the trial. The Code does contain limited provisions declaring that certain orders made by a Magistrate shall be void (section 530) but the errors enumerated are defects of jurisdiction, and not in them selves exhaustive. There is no provision rendering void the proceedings of a Magistrate who has taken a bribe to decide the case in a particular way, and thus has a monetary interest in the result, but can any person doubt that such proceedings are corrupted by bias through and through so as, to be fit only for nullification by a superior Court, acting in appeal or revision, when that fact is established ? The rule of 'the common law, as stated in Serjeant v. Dale (cited above) is as follows :‑ "The law does not judge the extent of interest which a Judge possesses. If he has any legal interest in the decision of the question one way, he is disqualified, no matter how small the interest may be. The law in laying down this rule has regard not so much perhaps to the motives which might be supposed to bias the judge, as to the susceptibilities of the litigant parties." And in Allinson v. General Council of Medical, Education 43 Ch. D 366, Esher M. R. said : "Where a person who has taken part in‑ the judicial proceedings or, you might say, has sat in judgment on the case has any pecuniary interest in the result, however small, the Court will not enquire whether he was really biased or likely to be biased. The Court will say at once, it is against public policy that a person who has any monetary interest, however small, in the result of judicial proceedings should take part in them as a .fudge. The Court will enquire no further, but will say at once that he is disqualified." Counsel appearing in this case appeared to agree in thinking that even if it were established at the instance of a party that the Judge had been corrupted at any stage during the proceed ings, the appellate or other superior Court could and should proceed to adjudicate on the record, as if in any other case, allowing for possible bias. They seemed also to think that if a Judge were shown to have been corrupted by both parties, his capacity for doing strict justice in the case would be shown, by that very fact, to be wholly unimpaired, and the appellate Court could proceed with fuller confidence to adjudicate on , the basis of the record. These views appear to me to ' be founded upon misapprehension of the nature of the judicial function and the extreme importance of maintaining in the public mind, the "feeling of confidence in the administration of justice which is so essential to social order and security". Serjeant v. Dale (supra). What is in fact a double disqualification, is thought to amount to a restoration of, judicial equilibrium. In every case, which has come to my notice, in which a superior Court has held bias to be proved, it has totally refrained from entering into the merits of the case, and has immediately proceeded to set aside the decision. They have invariably treated the circumstance, as a disqualification, which rendered the Judge incompetent. In Khairdi Khan's case, the majority judgment expressed the same opinion in different words, as follows := "anything in the nature of a serious defect in the Instrument of justice vitiates all subsequent proceedings." Cases from the Indian jurisdiction have been cited already. I proceed now to cite a few cases from England, Australia and the United States of America, to confirm the proposition, to the satisfaction, I hope, of the learned counsel who assisted at the hearing. The most important case on the subject is undoubtedly that of Dimes v. Grand Junction Canal 88 R R 330 decided by the House of Lords in 1N

52. The facts of that case are of the utmost interest. The suit had been brought by the Canal Company against Dimes for possession of certain areas connected with the canal, and for an injunction to pre vent Dimes from interfering with the navigation. It was tried by the Vice‑Chancellor of England in the Court of Chancery and resulted in a decree by which the plaintiff secured partial relief. Dimes presented a petition for rehear ing (equivalent to an appeal) which was heard by the Lord Chancellor of England, Lord Cottenham, who delivered judgment affirming the decree of' the Vice‑Chancellor. Thereafter, Dimes having discovered that Lord Cottenham had been a holder for many years of shares valued at several thousand pounds in the Canal Company, moved for an order discharging the order previously made by Lord Cottenham, and that his petition should be re‑heard, not by the Lord Chancellor, but, as suggested by Dimes, by Judges of the Court of common law. This was followed by certain proceed ings in which the Court of Chancery on several occasions attempted to enforce the decision of Lord Chancellor Cottenham even to the extent of placing Dimes in custody. A new Lord Chancellor having been pointed Dimes was released from custody, and he then moved an appeal against the decree of the Vice‑Chancellor; and against all succeeding orders. This appeal coming before the House of Lords, the House desired in the first instance to hear arguments on the question of the competency of Lord Chancellor Cottenham to hear and decide the case. The Solicitor‑General accepted the position that because Lord Chancellor Cotten ham was the holder of shares in the Company, that fact rendered him incompetent to here and decide the suit, and therefore there was no valid jurisdiction. Upon this, the, House of Lords proposed two questions for the consideration of His Majesty's Judges, one of which was whether Lord Chancellor Cottenham's orders were void on account of his own interest and of his having decided in his own cause. The Judges returned a lengthy answer, of which the purport, so far as it concerns the present discussion, is contained in the following passage :‑ . "The many cases in which the Court of King's Bench has interfered (and may have gone to a great length), where interested parties have acted as Magistrates, and quashed the orders made by the Court of which they formed part, afford an analogy. None of these orders is absolutely void ; it would create great confusion and inconvenience if it was. The objection might be one of which the parties acting under these orders might be totally ignorant till the moment of the trial of an action of trespass for the act done ; but these orders may be quashed after being removed by certiorari, and the Court shall do complete justice in that respect." Acting on, this advice, the House adopted the expedient of "removal of the Lord Chancellor's affirmance" of the Vice Chancellor's decree and proceeded 'to hear the appeal as from the decree of :the 'Vice‑Chancellor holding the affirmance by Lord Chancellor Cottenham as void an account of his interest, and the new Lord‑Chancellor expressed his entire concurrence with the view that "having regard to the interest which the late Lord Chancellor had in the Grand Junction Canal Company, his decision must be deemed to be voidable, and that an appeal to this House must be considered, as a proceeding in a Court of equity, the proper step to be taken to avoid such a decree." Lord Brougham stated opinion of the Judges in the following words :- "The learned Judges consulted, have come to a clear opinion upon that subject, that the decree is not void but only voidable ; nevertheless, that it is to be avoided when brought under review, and upon objection taken." At the conclusion of his speech, Lord Brougham said :‑ "Therefore, my Lord, we have now in the' first place to declare, agreeing in opinion with the learned Judges, that the interest of the Lord Chancellor rendered his decree voidable, and to declare that that decree is reversed." Lord Campbell expressing his complete concurrence, and the case is thus a strong authority' for the rule, described as a "rule of law" in Serjeant v. Dale (supra) that on proof of a disqualification, of this kind, a Court acting in appeal will "enquire no further" but will proceed at once to avoid the order under appeal. Cases in England where orders of inferior tribunals affected by bias have been avoided by Writ of certiorari can be multiplied almost without number. A particularly numerous category is that of cases from licensing justice,;, and frequently the consideration has been that in refusing a licence to an applicant the decision of the , justices may have been influenced, by the presence among their 'number of certain persons who in a different capacity had previously decided against the renewal or grant of such, licences, and in some cases had taken consequential action upon such decision. I mention here only the following cases, viz., Queen v. The London County Council in re .Empire Theatre 11 T L R 25, Queen v. Hertfordshire Justices 66 R R 556, Frome United Breweries v. Bath Justices 1926 A C 586, Queen v. Fraser 9 T L R 613 and Queen v. Sunderland Justices 1901 2 K B

357. In all these cases, certiorari issued to avoid the order, but in Cottle v. Cottle (1939) 2 A E L R 535 a retrial was ordered of a summons for desertion taken out . by a wife against her husband, on it being held established by affidavits, in the Probate Division, that there was ground for thinking that one of the justices was on terms of acquaintance with the wife's mother, who had declared that she would use her influence with him to win the case. An objection to the presence of this justice at the hearing was taken by the husband, and was over‑ruled. Merriman P. observed : "I am not imputing or thinking of imputing, to Mr. Browning any bias in fact, but applying the principles of these cases, it seems to be impossible to resist the con clusion that ‑this particular husband might reasonably have formed the impression that Mr. Browning would not give this case an unbiased hearing. That is enough for our decision." One of these cases, namely, that of Fraser, is of particular interest as the bias alleged in one of the licensing justices named Goddard, was of a religious character. , In Australia, a leading case on the subject is Dickason v. Edwards 10 C L R 243 where the question was raised, in relation to a domestic tribunal of a friendly society. A member of the society was put up before a disciplinary committee of which the principal officer of the society, called the District Chief Ranger, was a member, for expulsion on the ground of disgraceful conduct, including the use of vulgar abuses with particular reference to the District Chief Ranger. Objection was taken to the presence of the District Chief Ranger on the committee when the case came up, but the District Chief Ranger continued to sit, and an order for expulsion was Made, whereupon an action was brought by the expelled member t for a declaration of his rights. Griffith, C. J., in the High Court of Australia observed as follows :‑ "It is said the District Chief Ranger did not take any part in the proceedings.' I am willing to give the fullest credit to that, but 1 do not think it is material. He was a‑ member of the tribunal that tried the case; he ‑was present when it was heard, and, applying the ordinary rules, I cannot say that his being there did not vitiate the proceedings altogether . . . . For these reasons I think the findings of both the District Judicial Committee and the District Appeal Committee were vitiated by the presence of the District Chief Ranger". O'Connor, J., observed as follows : "In interpreting rules which give jurisdiction to any tribunal there is always to be read into them the under lying condition that the proceedings shall be carried on in accordance. with the fundamental principles of common justice." The conclusion of Isaacs. J., was to the same effect, and this learned Judge was at pains to cite in his judgment a considerable number of authorities including the case of Dimes v. Grand Junction Canal (cited above). In the result, the action succeeded, and the plaintiff was allowed the ,declaration he sought. Other cases of the same kind in the Australian jurisdiction will be found collected in the Australian Digest 1825‑1933, , Vol. 5, under the heading Courts and Judges Part 1‑Judges, Disqualification for Interest,, and from this source, I would .like to cite what was said by Griffith, C. J., in the case Raven v. Burnett (1895) Q L J 166 :‑ " An objection on the ground of interest applies equally to all Courts, superior and inferior. The judgment of any Court may be avoided if it is shown that the Judge, or any one of the Judges if more than one who took part in the decision had a pecuniary interest or any other substantial interest in the result as to make it likely that he had a real bias. In any such case the judgment of .the Court may be questioned, and in a proper case set aside by certiorari or other appeal, or rendered inoperative by prohibition, or if these remedies are not available, by injunction." The same principle appears to have been accepted in the United States. The law in that country is indeed so particular on the point, that section 21 of the new judicial Code of the United States provides that a Judge dealing with a case, before whom any party to the case shall make and file an affidavit that ‑the Judge has a personal bias or prejudice either against him or in favour of any opposite party to the suit, shall proceed no further with the suit and another Judge shall .be designated to hear the matter. In the case of Berger v. The United States ' (cited above), a plea had been raised on behalf of the Solicitor‑General that the judge was competent to exercise a judgment upon the facts affirmed in the affidavit against himself and to determine his qualification in the light of such judgment. The view of the majority was that by the section itself, the decision upon the truth of the matters was not within the competence of the Judge. I have not, in the time available, been able to trace decisions of the United States Courts in relation to concluded cases where an allegation of bias, in the Judge was made, but I consider that in this respect, its will be perfectly safe to rely upon a statement .on. the subject contained in an authoritative treatise on .American Constitutional Law, namely, Cooley's Constitutional Limitations. I quote below a paragraph appearing on ' page .874 in Volume II of the 8th Edition :‑ "Nor do we see how the objection of interest can be waived by the other party. If not taken before the decision is rendered, it will avail in an appellate Court ; and the suit may there be dismissed on that ground. The fudge acting in such a case is not a simply proceeding irregularly, but he is acting without jurisdiction. And if one of the Judges constituting a Court is disqualified on this ground, the judgment will be void, even though the proper number may have concurred, in the result, not reckoning the interested party." The discussion of this subject begins on page 870 of this volume, and it is bf interest to 'note that the case of Dimes v. Grand Junction Canal (cited above) is reported with approval at considerable length. It would be entirely natural to find the same rule being followed in those territories where the principles of natural justice as understood in the British jurisdiction were enforced by the Judicial Committee of the Sovereign's Privy Council. Cases of the relevant kind were not of common occurrence, and this may be due to the exercise of constant‑care by the proper authorities, executive as well as judicial, , to ensure fair and impartial administration of justice. Consequently, the matter did not come before the Judicial Committee very frequently, but their Lordships' view on the subject in the single case which has come to my notice, is entirely in accordance with the view expressed in Khairdi Khan's case. The case to which I refer is that of Vassiliades v. Vassiliades AIR1945PC38 which came before the Judicial Committee from the Supreme Court of Cyprus. I quote the following observations from page 40 :‑ "But it is still necessary to consider the application of the appellant for a new trial on the various grounds suggested. These can best be considered separately. The first objection, is that the judgment appealed from is a' nullity on the ground that the acting President of the District Court was not competent to sit but was disqualified because he. had been Official Receiver when the petition against Vassiliades was filed and had expressed an opinion adverse to the appellant in another case. This objection alleges bias and want of impartiality on the part of the Judges. It is a most serious objection, the effect of which, if it is sustained, is that the trial must be half to have been coram non judice and the judgment a nullity." The Judicial Committee supported their view by reference to Dimes v. Grand Junction Canal and Allinson v. General Council of ?Medical Education and Registration (supra). In view of what 1 have already said, it is not necessary for me to enlarge upon the practical difficulties, which beset the dispensation of justice upon the record of a proceeding before a biased Judge. The Courts have consistently declined to take a measure of the bias, or to trace its effect in the proceedings or the decision. I may here refer with advantage, to certain observations made by the Court of Appeal in the case R. w. Hertfordshire Justices (cited above), where one of several justices' was found to be affected with bias, The argument that even without this person, there was a majority in favour of the decision, was dealt with as follows. Lord Denman, C. J., said "A decision is vitiated by any one interested person taking part in it. We' cannot enter into an analysis of the different motives which may have produced the decision." Patteson, J., said "I think that it is very dangerous to allow an interested person to join, whether the majority , turn on his vote or not. The Magistrates discuss the question among them selves and it is impossible to say what effect.. than discussion may have on the decision." Wightman, J., said "We cannot enter into a discussion as to the extent of influence exercised by the interested party." The discussion of this topic may be usefully concluded by reproducing a short passage from the judgment of 'the majority in the case of Berger v. U. S. A. (cited above), at page 486. ‑It reads as follows,,:‑ "To commit to a Judge a decision, upon the truth of the facts gives chance for the evil against which the section (i.e., section 21 of the Judicial Code) is directed. The remedy by appeal is inadequate`. It comes after the trial, and if prejudice exists, it has worked its evil, and a judgment of it in a reviewing tribunal is, precarious. It goes there fortified by presumptions, and nothing can be more elusive of estimate or decision than a disposition of mind in which there is a personal ingredient." That is, in my humble opinion, very well said, and deserves the careful attention of all those who retain an interest art the due administration of law and justice, I trust I have said enough to demonstrate that the views expressed in the two judgments ''in Khairdi Khan's case receive support, in every aspect, from decisions of the highest Courts in the British, the United States, and the Australian C jurisdictions, and that the principles which followed by the late Chief Justice of Pakistan, and by my brother Shahabuddin and myself are ' eminently respectable, in point both of antiquity as well as of right reason. The judgments in that case do not seem to me to require any explanation, but it may be of advantage to make it clear that everything said in those judgments must be understood in relation to the principal point decided in that case, namely, that bias in the Judge had been established. Any observations in the judgments regarding the effect of interest, or of receipt of illegal gratification, or of external influence, the validity of the proceedings must be read subject to the ;assumption that an objection on one or other of these grounds has been taken, and has been upheld, whereupon the Court seized of the matter will enquire no further but within its powers, will proceed to take .action on the basis that the judgment is a nullity, because the Judge was disqualified Nothing has been said in the judgments, and nothing was intended to be said, which might have the effect of extending the principle enunciated in the case of Dimes v. Grand Junction Canal (supra) that in such a case, the judgment is voidable, and on proof of the circumstances of disqualification, a competent Court will avoid it, without further enquiry, as nullity. It seems necessary, however, to explain at somewhat greater length, another matter which has attracted criticism during the argument, namely, the reliance placed upon the Privy Council cases. of Adan Haji Jama and Tumahole Bereng. It was said that the case of Adan Haji Jama was decided by the Privy Council in favour of the prisoner appellant, because the trial was conducted without a public prosecutor, contrary to the . requirement of the relevant statute and not because the Judge had assumed the role of public prosecutor in the case. With due respect to those who maintain this opinion, that is not a correct statement of the view of the Judicial Committee. In the last paragraph of the judgment it‑ is indeed said that the absence of a prosecutor necessarily involved a breach of section 226 of the Ordinance, but it is said also that breaches of particular' provisions of the Ordinance might have been cured under section 393 (corresponding in material' respects to section 537 Cr. P. C.). Pointing out that any other suitable person could have been appointed as prosecutor, the judgment states as follows: "That course was not followed, and the Judge himself undertook the duties of the prosecution: That as the real vice in the trial." In the view of the Judicial Committee the combination in, one person of the duties of the prosecutor and the Judge prevented the trial from being one conducted substantially in the manner required by the Ordinance, so that the curative provisions of section 393 were not .available to remedy the defect. They then proceeded to observe that "it is impossible to be sure that a Judge who himself examines the prosecution witnesses, escapes art unconscious bias in favour of accepting their evidence", and repeating the maxim that Justice must not only be done but that it must be seen to be done, they observed that the accused and 'their friends can hardly have felt assured that impartial justice would be meted out to them by a Judge who was acting as prosecutor." These extracts should in my opinion suffice to make it clear that the Judicial Committed considered the absence of a Public Prosecutor as a possibly curable defect, but the real vice of the trial which no statutory provision could cure, was that by undertaking the duties of a prosecutor, the Judge incurred a real likelihood of acquiring an unconscious bias in favour of accepting the evidence of the prosecution witnesses, and this gave rise to a possible doubt in the mind of persons concerned, whether he was capable of dispensing impartial justice in the case. It was on this ground that the appeal was accepted and the case therefore fully supports the proposition laid down in his separate judgment by Sir Abdul Rashid, C. J. In the case of Tumahole Bereng at page 177 of the report (already cited), the Judicial Committee undoubtedly declared their opinion that the evidence in the case failed to establish the fact of murder, and the conviction was therefore bad. Holding that this was enough to dispose of the appeal, the Privy Council nevertheless took up the examination of two further matters arising out of the case which they thought to be of importance in the administration of criminal justice in the territory of Basutoland. The first matter is of no interest in the present case. The second matter related to the conduct of an Administrative Officer Mr. Driver who sat with the Judge at the trial. The appellants had contended that the conduct of this person "constituted so grave a departure from the due and orderly administration of justice that its consequence is to vitiate the trial and judgment". Their Lordships considered the allegations which were supported by affidavit, and observing that they did not doubt Mr. Driver's good faith in acting as he did, they yet thought that his action "was none the less most unfortunate and his subsequent participation in the trial highly irregular". Mr. Driver had visited the spot and had made local enquiries in the company of a number of Crown witnesses and had also interrogated one of them. Their Lordships thought that such conduct was calculated "to cause doubt in the public mind as to the complete impartiality of the proceedings in ‑which he subsequently took part". They repeated the maxim that justice must not only be done but must manifestly be seen to be done. They considered the possibilities in relation to Mr. Driver's conduct to ‑be such that grave suspicions affecting the impartiality of his mind, and of his having received information which could not be legally adduced in evidence, were reasonably engendered, and such an irregularity could .not be left out of account. .Citing an observation of Lord Atkin in the earlier Privy Council case of Mahlikilili Dhalamini 1942 A C 583, the Judicial committee thought that it may well be said' of this irregularity what was said in the precedent case, viz., that prima. facie it "must amount to such a disregard of the forms of justice as to lead to substantial and grave injustice within the rule adopted by this Court in dealing with criminal appeals". After that observation, I do not think it is possible to contend that the judicial Committee did not consider the conduct of Mr: Driver as being sufficient in itself to attract their special jurisdiction for the purpose of granting relief to the appellant. The reliance upon this case in the majority judgment in Khairdi Khan's case was as an instance of an extreme nature where bias in an assessor whose view was not binding upon the Judge,, was regarded as sufficient in itself to attract the jurisdiction of the Privy Council to interfere in criminal cases. If then, there was any shortcoming in the judgments delivered in Khairdi Khan's case, through what has been regarded by counsel who assisted in the present case, as inadequate citation of authority, I trust that that deficiency has bean made good in this judgment. I would delay my conclusion only long enough to say that, to the other weighty considerations that have guided the decisions of this Court and other Courts in favour of holding that bias when proved is in itself sufficient to vitiate a proceeding, one further consideration of public policy may well be added. It was said by Lord Campbell in the case of Dimes v, Grand Junction Canal (supra) that the action taken in respect of Lord Chancellor Cottenham's decree should be "a lesson to all inferior tribunal to take care not only that in their decrees they are not influenced by their personal interest but to avoid, the appearance of labouring under such an influence." The observation may perhaps be explained in this way. A Judge deciding a case under the influence of bias would take one view of his. wrong‑doing if he realised that everything he did would be set aside if his bias became known, but on the other hand, he would take a very different view, and might even be encouraged in his wrong‑doing, if he thought that the only danger was that of correction of his judgment in appeal. For, correction of judgments in appeal is incidental to all appealable judgments. The enforcement of an absolute rule of nullity is therefore calculated to encourage and preserve the maintenance by Judges of complete impartiality, and to deter all those who may be interested to influence their decisions. For reasons already . given, I would dismiss this appeal, adding a caution to the trial Judge in the terms I have indicated. A. H. Appeal dismissed.